                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 20, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 03-10277
                        Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

TERRY LEE OWENS,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 4:95-CR-172-ALL
                      --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Terry Lee Owens, federal prisoner # 29251-077, appeals from

the denial of his 18 U.S.C. § 3852(c)(2) motion for modification

of his sentence.   He argues that Amendment 591 to the Sentencing

Guidelines retroactively changed U.S.S.G. § 1B1.3 (Relevant

Conduct) to allow for punishment of a defendant only for conduct

pertaining to the count of conviction and, therefore, that his

guidelines should be recalculated.




     *
        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that this opinion should not be published and is not precedent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. 03-10277
                                  -2-

     We first address the Government’s contention that Owens’

notice of appeal was not timely filed.      Contrary to the

Government’s assertion, judgment denying Owens’ motion for

modification was not entered on the criminal docket until

February 7, 2003.   See FED. R. APP. P. 4(b)(6).    Owens’ motion for

reconsideration was filed within ten days of entry of that

judgment and, thus, had a suspensive effect on the time for

filing a notice of appeal.    See United States v. Brewer, 60 F.3d

1142, 1144 (5th Cir. 1995).    Owens’ notice of appeal was

therefore timely, and we have jurisdiction to entertain the

appeal.

     The appeal, however, is frivolous.      See 5TH CIR. R. 42.2;

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).         Amendment

591 amended the Guidelines to provide that the enhanced penalties

of U.S.S.G. § 2D1.2 applied only where a defendant was convicted

of an offense referenced to that guideline.      U.S.S.G., App. C

Supp., amend. 591, p. 32 (Reasons for Amendment) (2001).        Owens,

however, did not receive a § 2D1.2 enhancement; Amendment 591 is

therefore inapplicable to his sentence.

     APPEAL DISMISSED.
