                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-50143
                        Conference Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JAMES STEPHEN JONES,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. W-91-CR-55-1
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     James Stephen Jones, federal prisoner # 56081-080, appeals

the district court’s denial of his motion to reduce sentence

pursuant to 18 U.S.C. § 3582(c)(2) in which he sought to

challenge his sentence following his guilty plea to attempted

manufacture of between 100 and 1000 grams of methamphetamine.

For the first time on appeal, Jones argues that the Government

failed to disclose laboratory reports in violation of Brady v.

Maryland, 373 U.S. 83 (1963), and that he is actually innocent of


     *
        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that this opinion should not be published and is not precedent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. 04-50143
                                  -2-

the amount of methamphetamine attributed to him.    Jones may not

raise these issues, which are not purely legal, for the first

time on appeal.     See Diaz v. Collins, 114 F.3d 69, 71 (5th Cir.

1997).

     Jones argues that the district court erred in finding that

the drug-quantity calculation was based on the capacity of the

laboratory.    A review of the record establishes that no

inadmissible waste water, byproduct, or precursor chemicals were

considered by the court in its drug-quantity calculation.      See

United States v. Allison, 63 F.3d 350, 353 (5th Cir. 1995);

United States v. Manthei, 913 F.2d 1130 (5th Cir. 1990).

Accordingly, the district court did not abuse its discretion by

refusing to apply Amendment 484 to the Sentencing Guidelines to

Jones’s sentence.     See United States v. Shaw, 30 F.3d 26, 28 (5th

Cir. 1994).

     Jones’s alternative arguments that the theoretical drug

quantity in the presentence report was unreliable and that the

sentencing judge failed to make factual findings are not

cognizable in a 18 U.S.C. § 3582 motion because they are not

based upon a retroactive amendment to the guidelines.       See United

States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994).

     In a FED. R. APP. P. 28(j) letter, Jones argues that his

sentence is invalid in light of Blakely v. Washington, 124 S. Ct.

2531 (2004).    This argument is likewise not cognizable in a 18

U.S.C. § 3582 motion as it is not based upon a retroactive

amendment to the guidelines.     See Shaw, 30 F.3d at 29.
                          No. 04-50143
                               -3-

     Jones also argues that the Government’s failure to file a

brief is a “new development” and requires that his allegations on

appeal be accepted as true.   The Government’s decision not to

file a brief is not a “new development” of any import.

     AFFIRMED.
