                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS      August 17, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-41272
                        Conference Calendar


NHAN KHIEM TRAN, also known
as Tony Tran, also known as
Larry Tran,

                                    Petitioner-Appellant,

versus

SUZANNE HASTINGS, Warden,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 5:02-CV-39
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Nhan Khiem Tran, federal prisoner # 48684-079, appeals the

district court’s denial of his 28 U.S.C. § 2241 habeas petition

challenging his conviction for conspiracy to possess with intent

to distribute 3,4 methylenedioxy amphetamine (“MDA”), possession

with intent to distribute MDA, and attempted possession with

intent to distribute MDA.   Relying on United States v. Doggett,

230 F.3d 160 (5th Cir. 2000), Tran argues that his indictment


     *
        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that this opinion should not be published and is not precedent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. 03-41272
                               -2-

contained a jurisdictional defect because it did not charge the

drug quantity involved in the offense.   He argues that he has no

remedy under 28 U.S.C. § 2255, and therefore he is entitled to

seek relief under 28 U.S.C. § 2241 pursuant to the savings clause

of 28 U.S.C. § 2255.

     A federal prisoner may use 28 U.S.C. § 2241 to challenge the

legality of his conviction or sentence if he can satisfy the

mandate of the savings clause of 28 U.S.C. § 2255.

          [T]he savings clause of § 2255 applies to a claim
          (i) that is based on a retroactively applicable Supreme
          Court decision which establishes that the petitioner
          may have been convicted of a nonexistent offense and
          (ii) that was foreclosed by circuit law at the time
          when the claim should have been raised in the
          petitioner’s trial, appeal, or first § 2255 motion.

Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.

2001).

     Although Tran’s appeal focuses on our decision in Doggett,

in the district court he relied on the Supreme Court’s decision

in Apprendi v. New Jersey, 530 U.S. 466 (2000), which was the

basis for our Doggett decision.   Apprendi does not apply

retroactively to cases on collateral review, and an Apprendi

claim does not satisfy the requirements for filing a 28 U.S.C.

§ 2241 petition under the savings clause.   See Wesson v. U.S.

Penitentiary, Beaumont, TX, 305 F.3d 343, 347-48 (5th Cir. 2002),

cert. denied, 537 U.S. 1241 (2003).   Therefore, Tran’s claims do

not fall within the savings clause of 28 U.S.C. § 2255.

     AFFIRMED.
