           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        September 17, 2009
                                     No. 08-20437
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

ROQUE URDIALES GARCIA, also known as El Profe, also known as Roberto

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:89-CR-232-3


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Roque Urdiales Garcia, federal prisoner # 49905-079, appeals the district
court’s denial of his F ED. R. C RIM. P. 36 motion to correct a clerical error in the
district court’s 1998 judgment denying his first 28 U.S.C. § 2255 motion. Garcia
argues that the district court miscalculated his sentence in its 1998 judgment
and erroneously cited the 1997 Sentencing Guidelines. He argues that the
correction of this error reflects that his sentence was not properly calculated



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20437

under the 1987 Sentencing Guidelines. He argues that the this court should
remand his case for correction of the clerical error.
      Garcia has not shown that the district court erred in denying his Rule 36
motion to correct his sentence. Garcia’s Rule 36 motion amounts to a collateral
attack on his original sentence that must be brought under § 2255. A motion
under § 2255 is the primary mechanism for collaterally attacking a federal
sentence. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Garcia cannot
collaterally attack the district court’s denial of his first § 2255 motion in the
instant appeal. See id.
      Garcia has filed a F ED. R. A PP. P. 28(j) letter citing United States v. Powell,
266 F. App’x 263 (4th Cir. 2008), in support of his argument that Rule 36 may
be used to correct his sentence. Powell is distinguishable from the instant case
because Powell established that a clerical error caused him to be improperly
sentenced as a career offender. He raised the argument that his sentence should
be corrected in a supplemental § 2255 motion filed while his first § 2255 motion
was pending. Garcia has not shown that a clerical error exists, and he raised
this argument in a Rule 36 motion filed approximately ten years after his first
§ 2255 motion was denied; Garcia’s Rule 36 motion is in effect a successive
§ 2255 motion.
      For the first time on appeal, Garcia also argues that this court should
exercise its authority under 28 U.S.C. § 2106 to correct his illegal sentence. This
court will not consider the newly raised argument. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
      AFFIRMED.




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