IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40647 Summary Calendar

JOSE MEJIA,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-MC-2 -------------------- October 10, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges,

PER CURIAM:*

Jose Mejia, federal prisoner # 67074-079, was convicted of

conspiracy to possess over 1,000 kilograms of marijuana with

intent to distribute and was sentenced to 151 months

imprisonment. He appeals the district court’s dismissal of his

petition.

Mejia argues that his indictment is constitutionally

defective because it did not include an allegation of 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40647 -2-

quantity, and that the district court thus had no jurisdiction to

impose sentence in light of Apprendi v. New Jersey,

(2000).

Since Mejia filed his brief, this court rejected an

identical argument in a

case in Wesson v. U.S.

Penitentiary Beaumont, Tx., F.3d , (5th Cir. Sept. 5,

2002, No. 01-41000),

. The petitioner in

Wesson also argued that his indictment was defective under

Apprendi because it did not allege a drug quantity, and that the

district court was deprived of jurisdiction. Citing United

States v. Cotton,

(2002), United States

v. Longoria,

(5th Cir. 2002) (en banc), and United

States v. Gonzalez,

(5th Cir. 2002) (en banc), this

court held that the petitioner’s claim that his defective

indictment deprived the court of jurisdiction was meritless

because defects in an indictment are nonjurisdictional. Wesson,

.

Mejia argues that his Apprendi claim should be considered in

this

proceeding under the savings clause of

. In Wesson,

, this court

also rejected the petitioner’s savings clause argument, holding

that the petitioner could not satisfy the first prong of Reyes-

Requena v. United States,

(5th Cir. 2001), because

Apprendi is not retroactive on collateral review, citing United No. 02-40647 -3-

States v. Brown, F.3d , (5th Cir. Sept. 5, 2002, No. 01-

10116),

.

For these reasons, the district court’s dismissal of Mejia’s

petition is AFFIRMED, and amended to be with

prejudice.