                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                     July 10, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                           No. 05-50829
                         Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSEPH DESALME,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 5:01-CR-550-1
                       --------------------

Before REAVLEY, DAVIS and STEWART, Circuit Judges.

PER CURIAM:*

     Joseph Desalme appeals the sentence imposed at his

resentencing for his guilty plea conviction for possession of

pseudophedrine with intent to manufacture methamphetamine.

Desalme was resentenced to a term of imprisonment of 160 months

to be followed by a three-year term of supervised release.

     Desalme had filed a 28 U.S.C. § 2255 motion which resulted

in an order that he be resentenced.    Desalme argues, based on the

principle of res judicata, that the district court erred at



     *
       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this opinion should not be published and is not precedent except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. 05-50829
                                -2-

resentencing in reconsidering and denying him an adjustment of

his offense level for acceptance of responsibility.

     Desalme’s argument is without merit.   Res judicata is

applicable only if “the first action concluded with a final

judgment on the merits.”   The Proctor & Gamble Company v. Amway

Corporation, 376 F.3d 496, 499 (5th Cir. 2004) (internal

quotations and citation omitted).   When a § 2255 movant

challenges his conviction and sentence, he no longer has a

legitimate expectation of finality in the original sentence.

United States v. Rodriguez, 114 F.3d 46, 47-48 (5th Cir. 1997).

In the absence of a final judgment incorporating Desalme’s

sentence, his res judicata argument is without merit.   The

sentence imposed is AFFIRMED.
