916 F.2d 711Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff--Appellee,v.Elwood PEGRAM, Defendant-Appellant.
No. 90-6093.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 1, 1990.Decided Oct. 24, 1990.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston.  John T. Copenhaver, Jr., District Judge.  (CR-89-148-2)
Elwood Pegram, appellant pro se.
Jacquelyn Irwin Custer, Office of the United States Attorney, Charleston, W.Va., for appellee.
S.D.W.Va.
AFFIRMED.
Before DONALD RUSSELL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:


1
Elwood Pegram, a federal prisoner sentenced under the Sentencing Guidelines, brought this motion for correction of sentence under Fed.R.Crim.P. 35(a).  The district court denied the motion and Pegram appeals.  We find that the district court had no jurisdiction under Rule 35(a) to modify the sentence.  To the extent that Pegram is now attempting to appeal his sentence, the appeal is untimely.


2
Pegram claims that conduct from counts which were dismissed after he pled guilty to Count Five of the indictment should not have been considered in computing his sentence.  This claim was waived when Pegram failed to appeal and is not, therefore, a basis for construing this motion as a 28 U.S.C. Sec. 2255 motion.   United States v. Emanuel, 869 F.2d 795 (4th Cir.1989).


3
On this ground, we affirm the district court's order refusing relief.  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.


4
AFFIRMED.

