IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50840
Conference Calendar
JUAN MARTINEZ, SR.,
Petitioner-Appellant,
versus
R. D. MILES, Warden, FCI Bastrop,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CV-419-JN
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Martinez, Sr., federal prisoner # 75066-080, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition,
in which he challenged his 1997 conviction for conspiring to
possess marijuana with intent to distribute and possessing
marijuana with intent to distribute. Because Martinez is
challenging the sentence imposed pursuant to Apprendi v. New
Jersey, 530 U.S. 466 (2000), his petition is properly construed
*
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that this opinion should not be published and is not precedent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. 01-50840
-2-
as a 28 U.S.C. § 2255 motion. See Jeffers v. Chandler, 253 F.3d
827, 830 (5th Cir.), cert. denied, 122 S. Ct. 476 (2001).
Martinez has not asserted that his Apprendi claim is
cognizable under the “savings clause” of 28 U.S.C. § 2255, and
any such argument is deemed abandoned. Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Moreover, such an argument is unavailing. Apprendi does not
apply retroactively to cases on collateral review, and an
Apprendi violation does not establish that a prisoner was
convicted of a nonexistent offense. Wesson v. U.S. Penitentiary
Beaumont, Tex., 305 F.3d 343, 347-48 (5th Cir. 2002); Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). The
judgment of the district court is therefore AFFIRMED.