                                                          United States Court of Appeals
                                                                   Fifth Circuit

                                                               FILED
                 IN THE UNITED STATES COURT OF APPEALS      August 17, 2004
                         FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                              No. 03-41036
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

DAMON RUNNELS,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. C-02-CR-132-1
                      --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Damon Runnels, federal prisoner # 68688-079, appeals the

district court’s denial of his 18 U.S.C. § 3582 motion to reduce

his sentence.    He renews his argument that the sentencing judge

misapplied the sentencing guidelines in his case and contends,

for the first time, that, even if the district court lacked the

authority to correct his sentence under 18 U.S.C. § 3582, this

court has jurisdiction to correct his illegal sentence under 28




     *
       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this opinion should not be published and is not precedent except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. 03-41036
                                  -2-

U.S.C. § 2106.     This court will not consider the newly raised

argument.   See Leverette v. Louisville Ladder Co., 183 F.3d 339,

342 (5th Cir. 1999).

     The district court’s denial of Runnels’s § 3582 motion is

reviewed for an abuse of discretion.     See United States v.

Pardue, 36 F.3d 429, 430 (5th Cir. 1994).    Runnels has failed to

demonstrate an abuse of discretion on the district court’s part

because his motion was not authorized under 18 U.S.C.

§ 3582(c)(1) or (2) and was untimely under FED. R. CRIM. P. 35(a).

To the extent Runnels challenges the district court’s refusal to

construe the motion as a 28 U.S.C. § 2255 motion, the argument

fails because, as the district court determined, Runnels has not

alleged any constitutional violation in connection with his

sentence.   See United States v. Vaughn, 955 F.2d 367, 368 (5th

Cir. 1992); see also United States v. Segler, 37 F.3d 1131, 1134

(5th Cir. 1994).

     Runnels’s appeal is without arguable merit and is DISMISSED

as frivolous.    See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2.   His motion for leave to submit excerpts

of exhibits in support of his appeal is DENIED.
