                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 9, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-40645
                         Summary Calendar



MANUEL RAUL REYO PENA GARCIA MONTERO,
also known as Reyes Pena,

                                         Petitioner-Appellant,

versus

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES,

                                         Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:04-CV-120
                      --------------------

Before EMILIO M. GARZA, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Manuel Raul Reyo Pena Garcia Montero (Montero), federal

prisoner # 09794-000, appeals from the district court’s dismissal

of his 28 U.S.C. § 2241 petition as frivolous.    Specifically, the

district court determined that Montero’s arguments concerning

President Bush’s legitimacy and constitutional authority did not

relate to the manner in which Montero’s sentence was being

carried out or to the determination of its duration.


     *
        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that this opinion should not be published and is not precedent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. 04-40645
                                  -2-

     Because Montero is not incarcerated in Texas, the district

court lacked jurisdiction to entertain his petition pursuant to

28 U.S.C. § 2241.     Lee v. Wetzel, 244 F.3d 370, 373-75 (5th Cir.

2001) (ruling that "the district of incarceration is the only

district that has jurisdiction to entertain a defendant's § 2241

petition").     Accordingly, the judgment of the district court is

VACATED and the case is REMANDED with instructions to DISMISS

Montero’s 28 U.S.C. § 2241 petition without prejudice for lack of

jurisdiction.

     VACATED AND REMANDED with instructions.
