IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50840 Conference Calendar

JUAN MARTINEZ, SR.,

Petitioner-Appellant,

versus

R. D. MILES, Warden, FCI Bastrop,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-01-CV-419-JN -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Martinez, Sr., federal prisoner # 75066-080, appeals

the district court’s dismissal of his

petition,

in which he challenged his 1997 conviction for conspiring to

possess marijuana with intent to distribute and possessing

marijuana with intent to distribute. Because Martinez is

challenging the sentence imposed pursuant to Apprendi v. New

Jersey,

(2000), his petition is properly construed

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50840 -2-

as a

motion. See Jeffers v. Chandler,

, 830 (5th Cir.), cert. denied,

(2001).

Martinez has not asserted that his Apprendi claim is

cognizable under the “savings clause” of

, and

any such argument is deemed abandoned. Brinkmann v. Dallas

County Deputy Sheriff Abner,

(5th Cir. 1987).

Moreover, such an argument is unavailing. Apprendi does not

apply retroactively to cases on collateral review, and an

Apprendi violation does not establish that a prisoner was

convicted of a nonexistent offense. Wesson v. U.S. Penitentiary

Beaumont, Tex.,

(5th Cir. 2002); Reyes-

Requena v. United States,

(5th Cir. 2001). The

judgment of the district court is therefore AFFIRMED.