                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        November 3, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                             No. 02-30838
                           Summary Calendar



     UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

          versus

     PHILLIP K. SIAS,

                                           Defendant-Appellant.




          Appeals from the United States District Court
              for the Western District of Louisiana
                      USDC No. 99-CR-60034-1



Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Philip K. Sias, federal prisoner # 10304-035, was convicted of

using and carrying a firearm during the commission of a violent

crime, in violation of 18 U.S.C. § 924, and this court affirmed his

conviction and sentence.    United States v. Sias, 227 F.3d 244 (5th

Cir. Sept. 8, 2000).    Sias now appeals the July 23, 2002, denial of

his 18 U.S.C. § 3582(c)(2) motion filed July 16, 2002.       After we


     *
      Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
remanded to the district court for a finding (to be returned to

this court) on the timeliness of the notice of appeal from the July

23,   2002   order,      Fed.   R.    App.        P.   26    was    amended     to   provide

additional days for a notice of appeal.                     We need not decide whether

it is “just and practicable” to apply the new rule to the instant

case.   See FED. R. APP. P., ORDER       OF   APRIL 29, 2002.             Regardless of the

timeliness of the notice of appeal, Sias’s appeal is dismissed

because it is frivolous.             See United States v. Alvarez, 210 F.3d

309, 310 (5th Cir. 2000).

      Sias argues that (1) his plea agreement may have been breached

by the court’s decision to upwardly depart in arriving at his

sentence     and   (2)    the    court        failed        to     give    notice    of   and

justification for its upward departure.                       These arguments are not

cognizable in an 18 U.S.C. § 3582(c)(2) motion as that motion is

used only to raise an issue of the retroactive application of a

subsequently lowered sentencing range.                      See United States v. Shaw,

30 F.3d 26, 29 (5th Cir. 1994).                   Sias also argues that Amendment

598 to the Sentencing Guidelines provides for a reduction in his

sentence. Amendment 598 (effective November 1, 2000) is not listed

in U.S.S.G. § 1B1.10 and therefore may not be applied retroactively

on Sias’s motion.         See United States v. Drath, 89 F.3d 216, 218

(5th Cir. 1996).

      Sias’s appeal is frivolous because it lacks an arguable basis

in law or fact.       See McCoy v. Court of Appeals of Wisconsin Dist.


                                              2
1, 486 U.S. 429, 439-40 & n.10 (1985).   Accordingly, the appeal is

DISMISSED.   See 5TH CIR. R. 42.2.




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