                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  November 6, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-10524
                         Summary Calendar



JESUS ANTONIO ARBALLO-MARQUEZ,

                                      Petitioner-Appellant,

versus

STATE OF TEXAS,

                                      Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 1:02-CV-00204
                      --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jesus Antonio Arballo-Marquez (Arballo), currently federal

prisoner # 33643-077, seeks to appeal the district court’s denial

of his purported 28 U.S.C. § 2241 petition challenging a state

court drug conviction that was used to enhance his current

federal sentence for illegal reentry following deportation.         The

State of Texas, the respondent-appellee in this action, has moved

for leave to supplement the record.    This motion is GRANTED.



     *
        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that this opinion should not be published and is not precedent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. 03-10524
                                  -2-

     The respondent also moves for dismissal of the appeal,

asserting that because the district court lacks jurisdiction,

this court lacks jurisdiction as well.      This court may review a

district court’s determination that it lacked subject matter

jurisdiction over a case.     See Home Builders Ass’n of Miss. v.

City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).

However, a review of the arguments presented by the respondents,

of the appellate brief submitted by Arballo, and of the record

reveal that Arballo’s arguments against the district court’s

rulings are frivolous.    Because Arballo is no longer “in custody”

for his state sentences, he may not proceed under 28 U.S.C.

§ 2254.    See Pleasant v. Texas, 134 F.3d 1256, 1258 (5th Cir.

1998).     Arballo may not proceed under 28 U.S.C. § 2241 because he

is challenging errors occurring before his trial and sentencing

rather than the execution of his sentence.      See Jeffers v.

Chandler, 253 F.3d 827, 830 (5th Cir.), cert. denied, 534 U.S.

1001 (2001).    Arballo may not proceed under 28 U.S.C. § 2255

because he did not file his action in the sentencing court and

because he did not name his current custodian as the respondent.

See 28 U.S.C. § 2255 ¶ 1; Pleasant, 134 F.3d at 1258.

     This court may dismiss an appeal upon review of an

interlocutory motion if the appeal appears frivolous.     5TH CIR.

R. 42.2.    Therefore, the respondent’s motion to dismiss is

GRANTED, and Arballo’s appeal of his 28 U.S.C. § 2241 petition is

DISMISSED.
