IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40610 Summary Calendar

MANLEY CARGILL,

Petitioner-Appellant,

versus

JONATHON DOBRE, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-18 -------------------- October 1, 2002

Before JOLLY, JONES and PARKER, Circuit Judges.

PER CURIAM:*

Manley Cargill, federal prisoner # 41436-004, appeals from

the dismissal of his

petition challenging his

1990 convictions and sentences for, inter alia, a continuing

criminal enterprise ("CCE"), conspiracies to import marijuana and

cocaine, and distribution of marijuana. Cargill's petition

followed an unsuccessful

motion and a request to

file a successive

motion. The district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40610 -2-

determined that Cargill's petition was not authorized under the

"savings clause" of

.

To trigger the savings clause of

, a habeas

petitioner's claim (1) must be "based on a retroactively

applicable Supreme Court decision which establishes that the

petitioner may have been convicted of a nonexistent offense" and

(2) must have been "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,

(5th Cir. 2001). Cargill argues under Rutledge

v. United States,

(1996), that his sentences for CCE

and conspiracy must be set aside because the conspiracy offenses

were improperly used as the predicate offenses for the CCE

offense. The court need not address the merits of Cargill's

claim because, as Rutledge was decided in 1996, Cargill has not

shown that his argument was foreclosed at the time he filed his

first

motion in 1997. See Reyes-Requena,

.

Relying on Richardson v. United States,

(1999),

Cargill also argues that the district court failed to instruct

the jury that, to find him guilty of the CCE offense, it must

unanimously agree on which three acts constituted the series of

violations making up the continuing criminal enterprise. This

argument does not amount to a claim that Cargill was convicted of

conduct that did not constitute a crime, and Cargill has failed No. 02-40610 -3-

to satisfy the first prong of the savings clause test. See

Jeffers v. Chandler,

(5th Cir. 2001).

Cargill has not briefed his claim raised in the district

court that the jury was not instructed to find drug quantity as

an essential element of the offenses in violation of Apprendi v.

New Jersey,

(2000). Accordingly, that claim is

deemed abandoned. See Yohey v. Collins,

(5th Cir. 1993).

AFFIRMED.