IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40683
Summary Calendar
MARGARITO ERNESTO GUERRA
Petitioner - Appellant
v.
JONATHON DOBRE, Warden;UNITED STATES OF AMERICA
Respondents - Appellees
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-115
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October 4, 2002
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Margarito Ernesto Guerra, a federal prisoner (# 37025-079),
appeals the district court’s dismissal of his 28 U.S.C. § 2241
habeas corpus petition. Guerra has asserted that he is “actually
innocent” of his 20-year prison sentence for conspiracy to
possess marijuana with intent to distribute, both because the
Government failed to inform him under 21 U.S.C. § 851 of its
intent to use his prior conviction to enhance his sentence and
because the sentence violated the principles of Apprendi v. New
Jersey, 530 U.S. 466 (2000). The district court concluded that
*
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that this opinion should not be published and is not precedent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. 02-40683
-2-
because Guerra’s petition challenged the legality of his
sentence, it was in the nature of a 28 U.S.C. § 2255 motion to
vacate, but Guerra had not satisfied the “savings clause” of that
statute. See Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000).
Although Guerra could proceed under 28 U.S.C. § 2241 if he
demonstrated that 28 U.S.C. § 2255 relief was “inadequate or
ineffective” under the latter statute’s “savings clause,” Guerra
has made no such showing. His claim based on Apprendi is
frivolous because, pursuant to his plea agreement, he conceded
involvement in brokering “less than 100 kilograms of marijuana,”
and his sentence based on such a total carried a maximum prison
term of 20 years. See United States v. Moreno, 289 F.3d 371,
372-73 (5th Cir. 2002). Because Guerra’s claim based on
21 U.S.C. § 851 does not rely on a retroactively applicable
decision of the United States Supreme Court, it does fall within
the “savings clause.” See Henderson v. Haro, 282 F.3d 862, 863
(5th Cir. 2002).
Because Guerra has not demonstrated any error in the
district court’s judgment, the judgment is AFFIRMED.