IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50913 Conference Calendar

ROBERTO TORRES, III,

Petitioner-Appellant,

versus

WARDEN FOR FCI, LA TUNA U.S. PENITENTIARY,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CV-42-DB -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Roberto Torres, III, appeals from the denial of his

petition wherein he sought to vacate his conviction

for possession with intent to distribute marijuana and using or

carrying a firearm in relation to a drug crime, in violation of

and 846 and

.

Torres argues that the district court erred in determining

that his Apprendi v. New Jersey,

(2000), and United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50913 -2-

States v. Castillo,

(2000), claims did not meet the

criteria for bringing a claim pursuant to the “savings clause” of

.

To the extent that Torres attempts to rely on Apprendi, his

argument is foreclosed by this court’s decision in Wesson v.

U.S. Penitentiary Beaumont, TX,

(5th Cir.

2002), wherein we held that Apprendi is not retroactively

applicable to cases on collateral review and that an Apprendi

violation does not show that a petitioner was convicted of a

nonexistent offense.

With regard to his Castillo argument, Torres cannot show

that, pursuant to a Supreme Court case that is retroactively

applicable to cases on collateral review, he has been convicted

of a non-existent offense. See United States v. Reyes-Requena,

(5th Cir. 2001). Accordingly, Torres has not

shown that the district court erred in dismissing his petition.

AFFIRMED.