IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50533 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL HOUSTON ROBERSON, also known as Michael Renwick Houston,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-93-CR-109-2-JN -------------------- March 5, 2002

Before DUHÉ, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:1

Michael Houston Roberson, federal prisoner # 60656-080,

appeals the district court’s dismissal of his FED. R. CRIM. P.

12(b)(2) and (f) motion for lack of subject-matter jurisdiction.

Roberson wishes to challenge his indictment pursuant to Apprendi v.

New Jersey,

(2000), because the indictment did not

allege a drug quantity. He also wishes to challenge the

constitutionality of

because it removes an

essential element of the offense, drug quantity, from the jury’s

consideration.

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Our review of the district court’s dismissal for lack of

jurisdiction is de novo. See Hager v. NationsBank N.A.,

(5th Cir. 1999). Regardless of the label Roberson affixed

to his motion, it challenges the constitutionality of his sentence

as imposed by the district court and was properly construed as a

motion. See Tolliver v. Dobre,

(5th Cir. 2000); United States v. Rich,

(5th Cir.

1998). Because the motion filed purportedly under FED. R. CRIM. P.

12 was properly construed as a successive

motion,

Roberson was required to obtain this court’s authorization to file

it.

(b)(3)(A), 2255. Roberson did not obtain

authorization, and the district court properly dismissed the motion

for lack of jurisdiction. The district court’s dismissal is

AFFIRMED.

2