IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-51201 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

APOLONIO PASTRANO, also known as Polo,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CV-380 SA-93-CR-184-2 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Apolonio Pastrano, federal prisoner # 65249-080, is

appealing the district court’s denial of his

motion challenging his conviction for conspiracy to possess with

intent to distribute marijuana. Relying on Apprendi v. New

Jersey,

(2000), he argues that his conviction should

be set aside because the quantity of drugs upon which he was

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-51201 -2-

sentenced was not alleged in the indictment and was not submitted

to the jury and proved beyond a reasonable doubt.

In United States v. Brown,

(5th Cir.

2002), a

case, the court determined that the new

rule of criminal procedure announced in Apprendi does not apply

retroactively on collateral review of initial

motions. Therefore, Pastrano’s argument based on Apprendi fails.

The district court’s denial of Pastrano’s

motion

is AFFIRMED.

The Government’s motion for a summary affirmance is DENIED.