IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-30823 Conference Calendar

NOLAN MCSWAIN,

Petitioner-Appellant,

versus

CARL CASTERLINE,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 02-CV-833 -------------------- February 19, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

In 1993, Nolan McSwain, federal prisoner # 95006-012, was

convicted in California of conspiracy to possess and distribute

cocaine and possession with intent to distribute cocaine.

McSwain’s sentence was enhanced to life imprisonment due to three

prior drug felony convictions. He filed a habeas corpus petition

under

challenging his life sentence. That

petition was dismissed by the district court. McSwain argues

that he is actually innocent of his sentencing enhancement, that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-30823 -2-

the Government failed to give him notice of the sentencing

enhancement pursuant to

, and that the savings

clause of

is unconstitutional.

McSwain relies on Sawyer v. Whitley,

(1992),

in support of his actual innocence claim. Because Sawyer was

decided before McSwain was convicted and because Sawyer did not

legitimize drug-trafficking crimes, McSwain cannot avail himself

of the savings clause of

. See Reyes-Requena v.

United States,

(5th Cir. 2001). Similarly,

McSwain’s notice argument based on

does not

establish that he was convicted of a non-existent offense.

See

. Finally, McSwain’s conclusory argument

that the savings clause of

violates the

Suspension Clause, the Due Process Clause, and the Eighth

Amendment is without merit. See Wesson v. U.S. Penitentiary

Beaumont, TX,

(5th Cir. 2002).

AFFIRMED; ALL OUTSTANDING MOTIONS ARE DENIED.