IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40940
Conference Calendar
TOMMIE ANDERSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-35
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August 20, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Tommie Anderson, federal prisoner #24492-034, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition for
lack of jurisdiction. Anderson argues that his indictment was
defective under Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Jones v. United States, 526 U.S. 227 (1999), and that he should
be able to proceed under the “savings clause” of 28 U.S.C.
§ 2255.
*
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that this opinion should not be published and is not precedent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. 01-40940
-2-
Anderson must show that his remedy under 28 U.S.C. § 2255
would be inadequate or ineffective to test the legality of his
detention. See Reyes-Requena v. United States, 243 F.3d 893, 901
(5th Cir. 2001). Specifically, he must show that his claims are
“based on a retroactively applicable Supreme Court decision which
establishes that [he] may have been convicted of a nonexistent
offense” and that the claims were “foreclosed by circuit law at
the time when the claim[s] should have been raised in [his]
trial, appeal, or first 28 U.S.C. § 2255 motion.” Id. at 904.
Anderson was sentenced to 188 months’ imprisonment, which is
not above the maximum statutory range for an offense involving an
undetermined amount of cocaine base. See 21 U.S.C.
§ 841(b)(1)(C). His sentence of imprisonment was thus not in
violation of Apprendi or Jones. See United States v. Doggett,
230 F.3d 160, 166 (5th Cir. 2000), cert. denied, 531 U.S. 1177
(2001). His argument that Apprendi rendered the federal drug
statutes unconstitutional is without merit. See United States v.
Fort, 248 F.3d 475, 482-83 (5th Cir.), cert. denied, 122 S. Ct.
405 (2001). Accordingly, the district court did not err in
determining that Anderson could not bring his claims under the
savings clause of 28 U.S.C. § 2255.
AFFIRMED.