IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50713 Summary Calendar

RODRIGO BARRA GONZALEZ

Petitioner - Appellant

v.

TROY WILLIAMSON, Warden of La Tuna

Respondent - Appellee

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CV-234-DB -------------------- October 28, 2002 Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Rodrigo Barra Gonzalez, federal prisoner # 05197-033, was

convicted in the Southern District of Indiana by a jury of

conspiracy to distribute marijuana (

(a)(1) and

846) and two counts of engaging in financial transactions with

proceeds from unlawful activities (

(a)(1)). He

was sentenced to 235 months’ imprisonment.

Gonzalez argues that the district court erred in construing

his

petition as a

motion. He

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50713 -2-

argues that relief under

is warranted based on

actual innocence. He argues that he can proceed under

because

was an inadequate and ineffective

remedy. He argues that he was denied the opportunity to present

his constitutional claims in a

proceeding

through no fault of his own. He also argues that the district

court abused its discretion in not addressing his jurisdictional

claims pursuant to Federal Rule of Civil Procedure 60(b).** His

jurisdictional claim is that his indictment was faulty because

all of the facts which were used to determine his sentence were

not charged in the indictment. He cites the Fourth Circuit’s

decision in United States v. Cotton,

(4th Cir.

2001), which he argues requires that all facts legally essential

to the punishment be alleged in the indictment. He states that

his claim does not rely upon Apprendi v. New Jersey,

(2000).

Gonzalez essentially argues that his jurisdictional claim

should be considered in this

proceeding under

the savings clause. A

petition that attacks

custody resulting from a federally imposed sentence may be

entertained if the petitioner establishes that the remedy

** This argument is without merit. FED. R. CIV. P. 60(b) is not applicable to seek relief from a criminal judgment. His reliance on Rule 60(b) as a vehicle for relief would amount to nothing more than a successive § 2255 motion. Kutzner v. Cockrell, F.3d , (5th Cir. Aug. 7, 2002, No. 02-20857),

, cert. denied, S. Ct. ,

(Aug. 7, 2002). No. 02-50713 -3-

provided for under

is inadequate or ineffective

to test the legality of his detention. Tolliver v. Dobre,

(5th Cir. 2000). Thus, Gonzalez is correct that

the district court had jurisdiction to consider his savings

clause claims in this

petition.

Since Gonzalez filed his brief, this court rejected a

similar jurisdictional 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 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,

.

Although Gonzalez disavows reliance on Apprendi in his

brief, he based his argument on Apprendi in the district court,

and his arguments are based in part on the reasoning of Apprendi,

which held that sentencing factors which increase the sentence

*** The Supreme Court reversed the Fourth Circuit’s decision upon which Gonzalez relies. No. 02-50713 -4-

beyond the statutory maximum must be charged in the indictment

and proved beyond a reasonable doubt to the jury.

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

because Apprendi is not retroactive on collateral review, citing

United States v. Brown, F.3d , (5th Cir. Sept. 5, 2002,

No. 01-10116),

.

For these reasons, the district court’s dismissal of

Gonzalez’s

petition IS AFFIRMED.