IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40301 Conference Calendar

MARCO ANTONIO ZAPATA, III,

Petitioner-Appellant,

versus

ERNEST CHANDLER, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-125 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Marco Antonio Zapata, III, federal prisoner # 24879-077,

was convicted of conspiracy to possess with intent to distribute

cocaine in violation of

(a)(1) and 846 and

sentenced to 360 months in prison. He appeals the district

court’s dismissal of his

petition, arguing that

his sentence should be vacated under Apprendi v. New Jersey,

(2000) and that his Apprendi claim satisfies the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40301 -2-

requirements for filing a

petition under the

“savings clause” of

.

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).

Accordingly, the district court’s dismissal of Zapata’s

petition is AFFIRMED.