IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40903 Summary Calendar

ALFREDO CASTRO-ALVAREZ,

Petitioner-Appellant,

versus

J. DOBRE, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Texas

(USDC No. 1:02-CV-343)

December 4, 2002

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Alfredo Castro-Alvarez (“Castro”), federal prisoner # 00612-

196, appeals the denial of his

petition for writ

of habeas corpus. In his petition, Castro alleged that his

169-month sentence for conspiring to possess heroin with intent to

distribute was so excessive as to constitute cruel and unusual

punishment. Castro asserts that the district court erred when it

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. denied his petition without allowing him to file a supporting

memorandum. Castro’s argument is inconsistent with the plain

language of

, which authorizes a denial of a

petition for a writ of habeas corpus when it appears from the

application that the applicant is not entitled to the writ.

Castro’s allegation in his petition is a claim that the sentence

originally imposed is unconstitutional, and thus Castro has not

shown that the district court erred in concluding that Castro was

attempting to use his

petition as a means of

obtaining

relief. See Ojo v. INS,

(5th Cir. 1997). Castro has also not shown that the district

court erred in concluding that Castro had not met the requirements

of

's savings clause and therefore that Castro was

not entitled to relief pursuant to

. See Reyes-

Requena v. United States,

(5th Cir. 2001).

Because the district court correctly concluded that Castro was not

entitled to relief, the district court properly denied Castro’s

petition. See

.

The judgment of the district court is therefore AFFIRMED.

2