                                                         United States Court of Appeals
                                                                  Fifth Circuit

                                                              FILED
                IN THE UNITED STATES COURT OF APPEALS      August 17, 2004
                        FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk
                             No. 04-50215
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,
versus

THURMAN D. PAYNE,

                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                      USDC No. EP-01-CR-899-3-DB
                         --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Thurman D. Payne, federal prisoner # 16992-180, appeals the

district court’s denial of his FED. R. CIV. P. 60(b)(3) motion

seeking relief from his guilty-plea conviction and sentence.

Because Payne waived his right to indictment by grand jury, the

record does not support Payne’s allegations of fraud.       See United

States v. Cothran, 302 F.3d 279, 283 (5th Cir. 2002).       The

district court did not abuse its discretion in denying Payne’s

motion.    See Seven Elves v. Eskenazi, 635 F.2d 396, 402 (5th Cir.

1981).    Accordingly, the district court’s order is AFFIRMED.




     *
       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this opinion should not be published and is not precedent except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.
