IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-60038 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARON DEMETRIS KENNEY, also known as “Tall Dog,”

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC Nos. 3:01-CV-102-S and 4:93-CR-134-8-S -------------------- February 20, 2003

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

PER CURIAM:*

Daron Demetris Kenney, federal prisoner # 02255-112, pleaded

guilty to conspiracy to possess with the intent to distribute and

distribution of cocaine and cocaine base. He now appeals the

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

reconsideration of the denial as untimely of his

motion. He argues that his

motion was timely

based on Apprendi v. New Jersey,

(2000). Kenney has

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-60038 -2-

also requested leave to file an out-of-time reply brief in

further support of his argument.

Kenney’s Apprendi argument is foreclosed by this court’s

decision in United States v. Brown,

(5th Cir.

2002), wherein the court held that Apprendi “is not retroactively

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

district court’s judgment denying Kenney’s Rule 60(b) motion is

affirmed. In light of the foregoing, Kenney’s motion to file an

out-of-time reply brief is denied.

JUDGMENT AFFIRMED; MOTION DENIED.