IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50429 Summary Calendar

ROBERT PEREZ,

Petitioner-Appellant,

versus

R.D. MILES, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas (A-01-CB-446) -------------------- October 28, 2002

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Robert Perez, federal prisoner # 59975-

080, appeals the dismissal without prejudice of his §

petition. Perez contends that the district court erred in

accepting the magistrate judge’s report and recommendation, which

—— according to Perez —— erroneously stated that he had been

charged with and found guilty of a cocaine offense. Perez also

contends that he was sentenced in excess of the statutory maximum,,

and that he is “barred” from bringing a successive

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. motion. We review the district court’s findings of fact for clear

error and its determinations of law de novo. See Moody v. Johnson,

(5th Cir. 1998).

The district court, after de novo review of the magistrate

judge’s report and memorandum, issued its own order, which

correctly stated the offense of conviction. The district court

also stated correctly that Perez did not meet the requirements of

28 U.S.C. § 2255’s savings clause. See Pack v. Yusuff,

(5th Cir. 2000). Perez’s contention that he was sentenced

above the statutory maximum involves errors alleged to have

occurred at or before sentencing, so this issue is not properly

raised in a

petition. Perez has not shown that

(1) his claims are based on a retroactively applicable Supreme

Court decision establishing that the petitioner may have been

convicted of a nonexistent offense, and (2) his claims were

foreclosed by circuit law at the time when the claims should have

been raised in his trial, appeal, or first

motion.

See Reyes-Requena v. United States,

(5th Cir.

2001).

Although Perez does not cite Apprendi v. New Jersey,

(2000), he argues in his brief, as he did in the district

court, that he should not have been sentenced except as charged in

the indictment. Even if we construe this argument as invoking the

holding of Apprendi, it is to unavailing, given our recent holding

that Apprendi does not apply retroactively. See United States v.

2 Brown, No. 01-10116,

(5th Cir. Sept. 5,

2002).

Perez raises additional arguments for the first time in his

reply brief; however, an appellant abandons all issues not raised

and argued in the initial brief on appeal. See Cinel v. Connick,

(5th Cir. 1994). The district court’s judgment

is, in all respects,

AFFIRMED.

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