IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41452
Conference Calendar
RAUL ELIZONDO ALVAREZ,
Petitioner-Appellant,
versus
MICHAEL PURDY, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-01-CV-166
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August 20, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Raul Elizondo Alvarez (“Alvarez”), federal prisoner
#22950-149, appeals the district court’s dismissal of his 28
U.S.C. § 2241 petition for lack of jurisdiction. He argues that
his claim under Apprendi v. New Jersey, 530 U.S. 466 (2000),
meets the requisite criteria for proceeding under the “savings
clause” of 28 U.S.C. § 2255 and that he was actually innocent of
his cocaine convictions.
*
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that this opinion should not be published and is not precedent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. 01-41452
-2-
Alvarez’ reliance on Apprendi is misplaced. Apprendi does
not affect Alvarez’ term of imprisonment because his 262-month
sentence is within the statutory maximum for his offenses. See
United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert.
denied, 531 U.S. 1182 (2001). Furthermore, notwithstanding his
assertions of innocence, Alvarez fails to show that his claim “is
based on a retroactively applicable Supreme Court decision which
establishes that [he] may have been convicted of a nonexistent
offense.” See Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001). Accordingly, the district court did not err in
determining that Alvarez could not bring his claim under the
“savings clause” of 28 U.S.C. § 2255.
AFFIRMED.
Alvarez v. Purdy
Combined Opinion