IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50833 Conference Calendar

ADAN CHAVEZ,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-01-CV-464-JN -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Adan Chavez, federal prisoner # 51181-079 (“Chavez”) was

convicted in 1991 for conspiracy and possession of marijuana and

cocaine with intent to distribute. He appeals the district

court's dismissal of his

petition, arguing that

he is entitled to relief under the "savings clause" of

. Chavez relies on Apprendi v. New Jersey,

(2000), in support of his argument that his conviction and

sentence are invalid because his indictment did not allege a drug

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50833 -2-

quantity. He argues that Apprendi is a retroactively available

decision of the Supreme Court.

"[T]he savings clause of § 2255 applies to a claim (i) that

is based on a retroactively applicable Supreme Court decision

which establishes that the petitioner may have been convicted of

a nonexistent offense and (ii) that was foreclosed by circuit law

at the time when the claim should have been raised in the

petitioner's trial, appeal, or first § 2255 motion." Reyes-

Requena v. United States,

(5th Cir. 2001).

This court has recently rejected a petitioner's savings-clause

argument based on Apprendi, holding that the petitioner could

not satisfy the first prong of Reyes-Requena because Apprendi

is not retroactive on collateral review. See Wesson v. U.S.

Penitentiary, Beaumont, TX,

(5th Cir. 2002).

Accordingly, the district court's dismissal of Chavez's

petition is AFFIRMED.