IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41511 Conference Calendar

TOMMY MERREL JACKSON,

Petitioner-Appellant,

versus

EARNEST CHANDLER, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-574 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Tommy Merrel Jackson, federal prisoner No. 27477-077,

appeals the district court’s dismissal of his

petition challenging his conviction and life sentence for

conspiracy to possess with intent to distribute methamphetamine.

Jackson argued in his § 2241 petition that his sentence

violates Apprendi v. New Jersey,

(2000) because the

district court did not instruct the jury that it was required to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41511 -2-

make a finding as to drug quantity; thus, he contended that there

was no finding beyond a reasonable doubt that he was guilty of

conduct involving the quantity of drugs on which his sentence is

based. Jackson further argued that the “savings clause” of

authorized him to bring his Apprendi claim in a

§ 2241 petition.

To proceed under the savings clause of

,

Jackson must show that (1) his claim is based on a retroactively

applicable Supreme Court decision which establishes that he may

have been convicted of a nonexistent offense, and (2) his claim

was foreclosed by circuit law at the time when the claim should

have been raised in his trial, appeal, or first

motion. See Reyes-Requena v. United States,

(5th Cir. 2001).

We recently decided that an Apprendi claim does not satisfy

the savings clause test set forth in Reyes-Requena. See Wesson

v. U.S. Penitentiary Beaumont, TX,

(5th Cir.

2002). Specifically, we held that Apprendi does not apply

retroactively to cases on collateral review and that an Apprendi

violation does not show that a petitioner was convicted of a

nonexistent offense.

Accordingly, the district court’s

dismissal of Jackson’s

petition is AFFIRMED.