Chavez v. United States

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-50833
                        Conference Calendar


ADAN CHAVEZ,

                                         Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

                                         Respondent-Appellee.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. A-01-CV-464-JN
                        --------------------
                          December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Adan Chavez, federal prisoner # 51181-079 (“Chavez”) was

convicted in 1991 for conspiracy and possession of marijuana and

cocaine with intent to distribute.   He appeals the district

court's dismissal of his 28 U.S.C. § 2241 petition, arguing that

he is entitled to relief under the "savings clause" of 28 U.S.C.

§ 2255.   Chavez relies on Apprendi v. New Jersey, 530 U.S. 466

(2000), in support of his argument that his conviction and

sentence are invalid because his indictment did not allege a drug

     *
        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that this opinion should not be published and is not precedent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. 01-50833
                                -2-

quantity.   He argues that Apprendi is a retroactively available

decision of the Supreme Court.

     "[T]he savings clause of § 2255 applies to a claim (i) that

is based on a retroactively applicable Supreme Court decision

which establishes that the petitioner may have been convicted of

a nonexistent offense and (ii) that was foreclosed by circuit law

at the time when the claim should have been raised in the

petitioner's trial, appeal, or first § 2255 motion."   Reyes-

Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).

This court has recently rejected a petitioner's savings-clause

argument based on Apprendi, holding that the petitioner could

not satisfy the first prong of Reyes-Requena because Apprendi

is not retroactive on collateral review.   See Wesson v. U.S.

Penitentiary, Beaumont, TX, 305 F.3d 343, 347-48 (5th Cir. 2002).

     Accordingly, the district court's dismissal of Chavez's

petition is AFFIRMED.