IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40606
Conference Calendar
DEWEY WAYNE SALTER,
Petitioner-Appellant,
versus
JONATHON DOBRE, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-488
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Dewey Wayne Salter, federal prisoner # 19375-001, appeals
from the district court's dismissal of his 28 U.S.C. § 2241
petition. Salter's petition challenged alleged errors at
sentencing and should have been brought pursuant to 28 U.S.C.
§ 2255. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th
Cir. 2000). Salter argues that the district court's dismissal of
his petition because it failed to satisfy the "savings clause" of
28 U.S.C. § 2255 violates the Suspension Clause. However, the
*
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that this opinion should not be published and is not precedent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. 02-40606
-2-
"savings clause" of 28 U.S.C. § 2255 does not violate the
Suspension Clause. See Reyes-Requena v. United States,
243 F.3d 893, 901 n.19 (5th Cir. 2001).
Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000),
Salter argues that he met the requirements of the "savings
clause" because he is actually innocent of sentence enhancements
for being a leader or organizer and for vulnerable victim, which
were not alleged in his indictment and resulted in an increased
guideline range. Salter received a 42-month sentence for
wire/mail fraud offenses and a consecutive 120-month sentence
for money laundering offenses.
The statutory maximum for wire/mail fraud is five years, see
18 U.S.C. §§ 1341 and 1343, and the statutory maximum for money
laundering is ten years. See 18 U.S.C. § 1957. The district
court had the discretion to order consecutive sentences, and
Salter's sentence did not exceed the statutory maximum. Thus,
Apprendi is inapplicable. See United States v. Doggett, 230 F.3d
160, 166 (5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001); see
also 18 U.S.C. § 3584. Moreover, this court has recently held
that Apprendi does not apply retroactively to cases on collateral
review and that an Apprendi claim does not satisfy the first
prong of the Reyes-Requena test for filing a 28 U.S.C. § 2241
petition under the savings clause. See Wesson v. U.S.
Penitentiary, Beaumont, TX, 305 F.3d 343, 347-48 (5th Cir. 2002).
AFFIRMED.