IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40670 Conference Calendar

SANTOS NEGRON,

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-484 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Santos Negron, federal prisoner # 40480-053, appeals from

the district court’s denial of his FED. R. CIV. P. 60(b) motion

following the dismissal of his

motion for habeas

relief. This court reviews the denial of a Rule 60(b) motion for

an abuse of discretion. Seven Elves, Inc. v. Eskenazi,

(5th Cir. 1981).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40670 -2-

Because Negron’s

petition challenged his

conviction, he had to show that

provided him

with an inadequate or ineffective remedy. Pack v. Yusuff,

(5th Cir. 2000). "[T]he savings clause of § 2255

applies to a claim (i) that is based on a retroactively

applicable Supreme Court decision which established 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).

Citing Rutledge v. United States,

(1996), and

Apprendi v. New Jersey,

(2000), Negron argues that

his convictions for both conspiracy and participating in a

continuing criminal enterprise (CCE) violate the Double Jeopardy

Clause, and that his indictment was defective for failing to

allege drug quantities. Negron further asserts that, under

Richardson v. United States,

(1999), his CCE

conviction is defective because the jury was permitted to

consider uncharged conduct when determining the series of

predicate violations comprising that count.

We have held that alleged indictment errors under Apprendi

and Richardson fail to satisfy the first prong of the Reyes-

Requena test because such claims do not demonstrate that a

defendant was convicted of a nonexistent offense. See Wesson v. No. 02-40670 -3-

U.S. Penitentiary Beaumont, TX,

(5th Cir.

2002). Similarly, Negron’s double jeopardy argument fails to

meet the second prong of the Reyes-Requena test since Rutledge,

decided in 1996, was available to Negron well before the time he

filed his

motion. Reyes-Requena,

.

Because Negron does not meet the test set forth in Reyes-

Requena for satisfying

's savings clause

provisions, the district court did not abuse its discretion in

denying his FED. R. CIV. P. 60(b) motion. Eskenazi,

. Accordingly, we affirm.

AFFIRMED.