                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        February 13, 2004
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 03-40793
                         Summary Calendar



BRANDON C. SAMPLE, and on behalf of all similarly
situated federal prisoners in the United States and its
territories,

                                    Plaintiff-Appellant,

versus

FEDERAL BUREAU OF PRISONS,

                                    Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. C-02-CV-265
                      --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Brandon C. Sample’s petition for panel rehearing is DENIED.

The opinion of the court issued on November 21, 2003, 2003 WL

22770157, is withdrawn and the following is substituted:

     Sample, federal prisoner # 33949-037, appeals the district

court’s dismissal of his civil rights and Administrative

Procedures Act (APA) action for failure to state a claim 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that this opinion should not be published and is not precedent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. 03-40793
                                 -2-

U.S.C. § 1915(e)(2)(B)(ii).   Sample filed suit against the Bureau

of Prisons (BOP) to declare its promulgation and enforcement of

the Inmate Financial Responsibility Program (IFRP) as exceeding

the scope of its authority, and he sought to enjoin the BOP’s

enforcement of the IFRP against him and similarly situated

prisoners.    Sample was convicted of numerous counts of mail and

securities fraud and, in addition to an imprisonment term, was

sentenced to pay $275,000 in restitution and $1,800 in special

assessment.

     Sample argues that the district court did not review his

claim under the APA and that he is not raising a challenge to his

sentence but, rather, a challenge to the BOP’s authority to

promulgate and apply the IFRP.

     We review a 28 U.S.C. § 1915 dismissal for failure to state

a claim under the same de novo standard of review applicable to

dismissals made pursuant to FED. R. CIV. P. 12(b)(6).   Harris v.

Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).    We must determine

if, taking Sample’s allegations as true, no relief could be

granted based on those allegations.    Id.

     Sample should have raised his challenge to the restitution

aspect of his sentence on direct appeal.     United States v.

Hatten, 167 F.3d 884, 887 & n.5 (5th Cir. 1999).    The dismissal

of his complaint for failure to state a claim is AFFIRMED.
