IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40683 Summary Calendar

MARGARITO ERNESTO GUERRA

Petitioner - Appellant

v.

JONATHON DOBRE, Warden;UNITED STATES OF AMERICA

Respondents - Appellees

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:02-CV-115 -------------------- October 4, 2002

Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Margarito Ernesto Guerra, a federal prisoner (# 37025-079),

appeals the district court’s dismissal of his

habeas corpus petition. Guerra has asserted that he is “actually

innocent” of his 20-year prison sentence for conspiracy to

possess marijuana with intent to distribute, both because the

Government failed to inform him under

of its

intent to use his prior conviction to enhance his sentence and

because the sentence violated the principles of Apprendi v. New

Jersey,

(2000). The district court concluded that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40683 -2-

because Guerra’s petition challenged the legality of his

sentence, it was in the nature of a

motion to

vacate, but Guerra had not satisfied the “savings clause” of that

statute. See Pack v. Yusuff,

(5th Cir. 2000).

Although Guerra could proceed under

if he

demonstrated that

relief was “inadequate or

ineffective” under the latter statute’s “savings clause,” Guerra

has made no such showing. His claim based on Apprendi is

frivolous because, pursuant to his plea agreement, he conceded

involvement in brokering “less than 100 kilograms of marijuana,”

and his sentence based on such a total carried a maximum prison

term of 20 years. See United States v. Moreno,

(5th Cir. 2002). Because Guerra’s claim based on

does not rely on a retroactively applicable

decision of the United States Supreme Court, it does fall within

the “savings clause.” See Henderson v. Haro,

(5th Cir. 2002).

Because Guerra has not demonstrated any error in the

district court’s judgment, the judgment is AFFIRMED.