IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41109 Conference Calendar

OSCAR MARTINEZ,

Petitioner-Appellant,

versus

EARNEST V. CHANDLER, Warden,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:00-CV-541 - - - - - - - - - - December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Oscar Martinez, federal prisoner # 43662-080, was convicted

of aiding and abetting the distribution of in excess of 100

kilograms of marihuana. He appeals the district court’s

dismissal of his

petition, arguing that he

qualifies for relief under the savings clause of

. He asserts that his sentence is invalid under Apprendi

v. New Jersey,

(2002), and argues for the first time

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41109 -2-

on appeal that his inability to proceed under

violates the Suspension Clause.

This court has recently held that Apprendi does not apply

retroactively to cases on collateral review and that an Apprendi

claim does not satisfy the requirements for filing a

petition under the savings clause. See Wesson v. U.S.

Penitentiary, Beaumont, TX,

(5th Cir. 2002).

Martinez’s Suspension Clause argument was not raised below and is

without merit. See Leverette v. Louisville Ladder Co.,

(5th Cir. 1999); Turner v. Johnson,

(5th Cir. 1999).

Accordingly, the district court's dismissal of Martinez’s

petition is AFFIRMED.