IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40852 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER LAKENT BURNS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC Nos. 3:00-CV-22 & 3:97-CR-4-2 -------------------- February 20, 2003

Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Christopher Lakent Burns, federal prisoner # 06386-078,

appeals the district court’s denial of his

motion. Burns was sentenced to 292 months’ imprisonment

following his conviction for conspiracy to possess cocaine base

with intent to distribute cocaine base and conspiracy to

distribute cocaine base in violation

. The

district court denied Burns’s motion and granted a certificate of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40852 -2-

appealability on the issue of whether Apprendi v. New Jersey,

(2000), should apply retroactively with respect to

an initial challenge to a conviction on collateral review.

The issue is now foreclosed by this court’s decision in

United States v. Brown,

(5th Cir. 2002),

wherein this court held that Apprendi “is not retroactively

applicable to initial petitions under § 2255.” Accordingly, the

district court’s judgment denying Burns’s

motion

is affirmed.

AFFIRMED.