                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 12, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 03-50171
                           Summary Calendar



UNITED STATES OF AMERICA

                Plaintiff-Appellee

versus

PEDRO CARBAJAL-DEPAZ

                Defendant-Appellant

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. A-01-CR-108-1-SS
                       --------------------

Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.

PER CURIAM:*

     Pedro Carbajal-Depaz, Texas prisoner #15168-180, appeals the

district court’s dismissal of his postconviction motion to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

§ 2255 motion and the district court’s denial of his

postconviction motion to rescind his fine.    Carbajal pleaded

guilty to conspiracy to possess with intent to distribute more

than five kilograms of cocaine in violation of 21 U.S.C. § 846

and money laundering in violation of 18 U.S.C. § 1956(h).

     *
        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that this opinion should not be published and is not precedent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.
                            No. 03-50171
                                 -2-

     As Carbajal argues, the dismissal of his 28 U.S.C. § 2255

motion should be without prejudice.    See Stewart v. Martinez-

Villareal, 523 U.S. 637, 645 (1998); Fassler v. United States,

858 F.2d 1016, 1019 (5th Cir. 1988).   Because the district court

did not indicate whether it was dismissing Carbajal’s 28 U.S.C.

§ 2255 motion with or without prejudice, the dismissal is

presumed to be with prejudice.    See Nationwide Mutual Ins. Co. v.

Unauthorized Practice of Law Comm., 283 F.3d 650, 655 n.26 (5th

Cir. 2002).    The dismissal of Carbajal’s 28 U.S.C. § 2255 motion

is therefore AFFIRMED but REMANDED to the district court so it

can modify its order to dismiss the motion without prejudice.

     As the district court did not have jurisdiction to review

Carbajal’s motion to rescind his order, the denial of this motion

is AFFIRMED.    See United States v. Early, 27 F.3d 140, 141-42

(5th Cir. 1994); United States v. Hatten, 167 F.3d 884, 886 (5th

Cir. 1999); see also 18 U.S.C. § 3582(c)(1); FED. R. CRIM. P. 35;

18 U.S.C. § 3742.

     DISMISSAL OF 28 U.S.C. § 2255 MOTION AFFIRMED BUT REMANDED

WITH INSTRUCTIONS THAT DISTRICT COURT MODIFY ITS ORDER TO REFLECT

DISMISSAL IS WITHOUT PREJUDICE; AFFIRM DENIAL OF MOTION TO

RESCIND FINE.
