United States Court of Appeals Fifth Circuit F I L E D April 24, 2003 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-40823 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SALVADOR VARGAS NAVARRO, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:00-CV-376 USDC No. 4:96-CR-63-2 -------------------- Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:* Salvador Vargas Navarro, federal prisoner # 05101-010, appeals the district court’s dismissal of his 28 U.S.C. § 2255 motion as untimely. He maintains that because he filed his motion within one year of the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and because Apprendi effected a substantive change in criminal law, it is applicable to his case. Apprendi

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40823 -2- is not retroactively applicable to cases on collateral review.

See United States v. Brown, 305 F.3d 304, 305-09 (5th Cir. 2002), petition for cert. filed (U.S. Feb. 3, 2003)(No. 02-9606). The argument is foreclosed by the law of this circuit. Id. The judgment of the district court is therefore AFFIRMED.