IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30157 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DELTON LEE MCEWEN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CR-50012-ALL --------------------

October 18, 1999

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Delton Lee McEwen appeals the denial of his second motion

for “MODIFICATION OR REMISSION OF THE INTEREST AND PENALTIES”

relating to a $75,000 fine imposed by the district court

following his conviction of attempted possession with intent to

distribute d-methamphetamine. McEwen did not file a timely

notice of appeal with regard to the denial of his motion. See

Fed. R. App. P. 4(b). It would be futile for this court to

remand McEwen’s case to the district court to determine whether

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-30157 -2-

there was excusable neglect in filing the late notice of appeal,

see United States v. Golding,

(5th Cir. 1984),

because even if there is excusable neglect and the notice of

appeal from the order denying McEwen’s second motion for

modification or remission of his fine is timely, this court would

dismiss McEwen’s case. The district court did not have

jurisdiction to entertain McEwen’s motion because it does not fit

into the jurisdictional framework of any postconviction relief

available to McEwen. See United States v. Early,

(5th Cir. 1994).

McEwen’s notice of appeal, liberally construed, is timely as

to the district court’s denial of his motion for reconsideration

of the denial of his first motion for “MODIFICATION OR REMISSION

OF THE INTEREST AND PENALTIES.” McEwen asks this court to waive

the interest payments during his period of incarceration or to

remand his case to the district court with instructions to do so.

However, McEwen’s first motion, like his second motion, was

unauthorized and the district court did not have jurisdiction to

consider it. See

. The district court should have

denied McEwen’s motion for “MODIFICATION OR REMISSION OF THE

INTEREST AND PENALTIES,” and McEwen’s motion for reconsideration

of the denial of that motion, as unauthorized, rather than on the

merits. See

As the district court was without jurisdiction to consider

McEwen’s unauthorized motion for modification or remission of his

fine in the first instance, McEwen’s motion for remand to the

district court for modification of his fine is DENIED. McEwen’s No. 99-30157 -3-

appeal from the district court’s refusal to reconsider its denial

of an unauthorized motion is without arguable merit and is

therefore DISMISSED as frivolous. See Howard v. King,

(5th Cir. 1983).