IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40670
Conference Calendar
SANTOS NEGRON,
Petitioner-Appellant,
versus
ERNEST CHANDLER, 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-484
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Santos Negron, federal prisoner # 40480-053, appeals from
the district court’s denial of his FED. R. CIV. P. 60(b) motion
following the dismissal of his 28 U.S.C. § 2241 motion for habeas
relief. This court reviews the denial of a Rule 60(b) motion for
an abuse of discretion. Seven Elves, Inc. v. Eskenazi, 635 F.2d
396, 402 (5th Cir. 1981).
*
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that this opinion should not be published and is not precedent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. 02-40670
-2-
Because Negron’s 28 U.S.C. § 2241 petition challenged his
conviction, he had to show that 28 U.S.C. § 2255 provided him
with an inadequate or ineffective remedy. Pack v. Yusuff, 218
F.3d 448, 452 (5th Cir. 2000). "[T]he savings clause of § 2255
applies to a claim (i) that is based on a retroactively
applicable Supreme Court decision which established 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).
Citing Rutledge v. United States, 517 U.S. 292 (1996), and
Apprendi v. New Jersey, 530 U.S. 466 (2000), Negron argues that
his convictions for both conspiracy and participating in a
continuing criminal enterprise (CCE) violate the Double Jeopardy
Clause, and that his indictment was defective for failing to
allege drug quantities. Negron further asserts that, under
Richardson v. United States, 526 U.S. 813 (1999), his CCE
conviction is defective because the jury was permitted to
consider uncharged conduct when determining the series of
predicate violations comprising that count.
We have held that alleged indictment errors under Apprendi
and Richardson fail to satisfy the first prong of the Reyes-
Requena test because such claims do not demonstrate that a
defendant was convicted of a nonexistent offense. See Wesson v.
No. 02-40670
-3-
U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 347-48 (5th Cir.
2002). Similarly, Negron’s double jeopardy argument fails to
meet the second prong of the Reyes-Requena test since Rutledge,
decided in 1996, was available to Negron well before the time he
filed his 28 U.S.C. § 2255 motion. Reyes-Requena, 243 F.3d at
904.
Because Negron does not meet the test set forth in Reyes-
Requena for satisfying 28 U.S.C. § 2255's savings clause
provisions, the district court did not abuse its discretion in
denying his FED. R. CIV. P. 60(b) motion. Eskenazi, 635 F.2d at
402. Accordingly, we affirm.
AFFIRMED.