IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-60245 Summary Calendar

MIGUEL CRUZ-FERNANDEZ,

Petitioner-Appellant,

versus

KHURSHID Z. YUSUFF,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:01-CV-79-BrS -------------------- November 7, 2002

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Miguel Cruz-Fernandez (Cruz), federal prisoner # 25041-004,

has filed a

petition challenging his 1992

conviction for possession of cocaine with intent to distribute. He

asserts that because the jury was not required to find the drug

type, quality, or quantity beyond a reasonable doubt and the drug

quality and quantity were not alleged in the indictment, his

conviction and sentence are invalid under Apprendi v. New Jersey,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-60245 -2-

(2000). Apprendi does not apply retroactively to

cases on collateral review, and an Apprendi violation does not

establish that a petitioner was convicted of a nonexistent offense.

Wesson v. U.S. Penitentiary Beaumont, Tex., ___ F.3d ___ (5th Cir.

Sept. 5, 2002, No. 01-41000),

at *3-*4; Reyes-

Requena v. United States,

(5th Cir. 2001). Cruz

has not established that he is entitled to present his claims under

, and the district court’s judgment is AFFIRMED.