                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         January 26, 2004

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                               No. 03-10690
                             Summary Calendar



                         UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                    versus

                               RANDY HARRIS,

                                                       Defendant-Appellant.

                          --------------------
              Appeal from the United States District Court
                   for the Northern District of Texas
                         USDC No. 3:92-CR-289-H
                          --------------------

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

      Randy    Harris,   federal    prisoner    #   23373-077,    appeals      the

district court’s denial of his motion for downward departure

relating to the sentence imposed following his 1992 jury conviction

for   conspiracy    to   commit    extortion,   extortion,   conspiracy         to

distribute cocaine base, and distribution of cocaine base.

      To the extent Harris relies on U.S.S.G. § 5K1.1, his argument

is misplaced.      U.S.S.G. § 5K1.1 operates upon Government motion at

the time of original sentencing.         United States v. Mitchell, 964

      1
        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that this opinion should not be published and is not precedent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.
F.2d 454, 461 (5th Cir. 1992).            The Government has filed no such

motion, and Harris is not authorized under the Guidelines to bring

such a motion.        See U.S.S.G. § 5K1.1.

      Harris argues that he has provided substantial assistance to

the Government and that the Government’s refusal to file a downward

departure     motion     pursuant    to       FED.   R.   CRIM.    PRO.   35(b)   is

unconstitutionally motivated.         Harris’ arguments are vague and are

not   the   “substantial      threshold        showing”    of     unconstitutional

motivation that is required before the district court can consider

a defendant’s FED. R. CRIM. PRO. 35(b) motion.             See United States v.

Sneed, 63 F.3d 381, 389 n.6 (5th Cir. 1995).              Because Harris failed

to make a substantial showing of unconstitutional motivation, the

district court was without authority to consider Harris’ Rule 35(b)

motion.     See id.

      Additionally, Harris has failed to brief whether the district

court erred when it failed to hold the evidentiary hearing that he

requested and when it did not grant relief                pursuant to 18 U.S.C.

§ 3553(e) and U.S.S.G. § 5K2.0, both of which were cited in his

district court pleadings.        This court “will not raise and discuss

legal issues that [Harris] has failed to assert.”                     Brinkmann v.

Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987).    Harris has abandoned these issues on appeal because he has

not addressed these issues.         E.g., Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993).



                                          2
       Harris   has   thus   filed     an    appeal   from   a   denial    of   an

unauthorized     motion      that     the    district   court     was     without

jurisdiction to entertain.           See United States v. Early, 27 F.3d

140, 142 (5th Cir. 1994).           Although the district court denied the

motion on the merits, we may affirm on the alternative basis that

the district court lacked jurisdiction to entertain Harris’ motion.

 Id.

       The judgment of the district court is AFFIRMED.




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