IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-60238 Summary Calendar

KENNETH GLENN ATKINSON

Petitioner - Appellant

v.

UNITED STATES OF AMERICA

Respondent - Appellee

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:01-CV-48-GR - - - - - - - - - - October 10, 2002

Before KING, Chief Judge, and WIENER and PARKER, Circuit Judges.

PER CURIAM:*

Kenneth Glenn Atkinson, federal prisoner #10776-042, appeals

the district court’s dismissal with prejudice of his

petition in which he asserted a sentencing error based on

Apprendi v. New Jersey,

(2000). Atkinson has failed

to address the district court’s determination that it lacked

jurisdiction to rule on his petition. Atkinson has therefore

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-60238 -2-

waived argument on this issue. See Yohey v. Collins,

(5th Cir. 1993).

This appeal is without arguable merit and is frivolous. See

Howard v. King,

(5th Cir. 1983). It is

therefore DISMISSED. 5TH CIR. R. 42.2.

APPEAL DISMISSED.