                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 18, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-50906
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JIMMY DAVID CLARK, also known as Shane Lee Allen,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. MO-93-CR-61-ALL
                       --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jimmy David Clark, federal prisoner # 57808-080, seeks leave

to proceed in forma pauperis (“IFP”) in his appeal from the

district court’s order denying his motion to modify his sentence

pursuant to 18 U.S.C. § 3582(c).   To obtain leave to proceed IFP

on appeal, Clark must demonstrate both financial eligibility and

that he will present a non-frivolous issue on appeal.      See Carson

v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).



     *
        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that this opinion should not be published and is not precedent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. 03-50906
                                -2-

     Clark’s motion to modify his sentence is not authorized

under 18 U.S.C. § 3582(c)(2).     That section permits a defendant

to move for modification of his sentence if the sentencing range

relied upon by the district court is subsequently lowered by

an amendment to the Sentencing Guidelines.     See 18 U.S.C.

§ 3582(c)(2).   The amendment relied upon by Clark was enacted

almost four years before he was sentenced.     Consequently,

18 U.S.C. § 3582(c)(2) is inapplicable.

     Because Clark has failed to show that he will raise a non-

frivolous issue on appeal, his motion to proceed IFP on appeal

is DENIED.   See Carson, 689 F.2d at 586.    Because the appeal is

frivolous, it is DISMISSED.     See 5TH CIR. R. 42.2.

     IFP DENIED; APPEAL DISMISSED.
