                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                September 1, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40196
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

TAI TAN DUONG, formerly known as Tan Tai Duong,

                                      Defendant-Appellant.


                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                        USDC No. 1:93-CR-16-1
                         --------------------


Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     Tai Tan Duong, federal prisoner # 04216-078, has appealed

the denial of his motion under 28 U.S.C. § 3582(c)(2) for

modification of his sentence, in light of Sentencing Guidelines

Amendment 591.    Because the amendment did not lower the guideline

range under which Duong was sentenced, the district court did not

have authority under 28 U.S.C. § 3582(c)(2) to reduce his

sentence.   See United States v. Owens, No. 03-10277, 2003 WL


     *
       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this opinion should not be published and is not precedent except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. 04-40196
                                -2-

21994002, at **1 (5th Cir. Aug. 20, 2003) (unpulished), cert.

denied, 124 S. Ct. 1525 (2004).

     Duong contends for the first time on appeal that his

sentence was illegal in light of Apprendi v. New Jersey, 530 U.S.

466 (2000).   Apprendi has not been applied retroactively.     See

United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002).

     Because the appeal is frivolous, it is DISMISSED.   See

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR.

R. 42.2.

     APPEAL DISMISSED.
