United States v. Sias , 81 F. App'x 474 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 3, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-30838
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILLIP K. SIAS,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 99-CR-60034-1
Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Philip K. Sias, federal prisoner # 10304-035, was convicted of
using and carrying a firearm during the commission of a violent
crime, in violation of 18 U.S.C. § 924, and this court affirmed his
conviction and sentence. United States v. Sias, 227 F.3d 244 (5th
Cir. Sept. 8, 2000). Sias now appeals the July 23, 2002, denial of
his 18 U.S.C. § 3582(c)(2) motion filed July 16, 2002. After we
*
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opinion should not be published and is not precedent except under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.
remanded to the district court for a finding (to be returned to
this court) on the timeliness of the notice of appeal from the July
23, 2002 order, Fed. R. App. P. 26 was amended to provide
additional days for a notice of appeal. We need not decide whether
it is “just and practicable” to apply the new rule to the instant
case. See FED. R. APP. P., ORDER OF APRIL 29, 2002. Regardless of the
timeliness of the notice of appeal, Sias’s appeal is dismissed
because it is frivolous. See United States v. Alvarez, 210 F.3d
309, 310 (5th Cir. 2000).
Sias argues that (1) his plea agreement may have been breached
by the court’s decision to upwardly depart in arriving at his
sentence and (2) the court failed to give notice of and
justification for its upward departure. These arguments are not
cognizable in an 18 U.S.C. § 3582(c)(2) motion as that motion is
used only to raise an issue of the retroactive application of a
subsequently lowered sentencing range. See United States v. Shaw,
30 F.3d 26, 29 (5th Cir. 1994). Sias also argues that Amendment
598 to the Sentencing Guidelines provides for a reduction in his
sentence. Amendment 598 (effective November 1, 2000) is not listed
in U.S.S.G. § 1B1.10 and therefore may not be applied retroactively
on Sias’s motion. See United States v. Drath, 89 F.3d 216, 218
(5th Cir. 1996).
Sias’s appeal is frivolous because it lacks an arguable basis
in law or fact. See McCoy v. Court of Appeals of Wisconsin Dist.
2
1, 486 U.S. 429, 439-40 & n.10 (1985). Accordingly, the appeal is
DISMISSED. See 5TH CIR. R. 42.2.
3