                                                       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. 02-50775
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DAVID EUGENE KESSLER,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. EP-01-CV-223-DB
                         EP-97-CR-602-1-DB
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     David Eugene Kessler, federal prisoner # 81016-080,

convicted of conspiracy to possess with intent to distribute

marijuana, appeals the district court’s denial of his 28 U.S.C.

§ 2255 motion as time-barred.   The district court determined that

Apprendi v. New Jersey, 530 U.S. 466 (2000), does not apply

retroactively to cases on collateral review and that Kessler’s 28


     *
        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that this opinion should not be published and is not precedent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. 02-50775
                               -2-

U.S.C. § 2255 motion, filed more than a year following the date

his conviction became final but within a year after Apprendi was

decided, was untimely under the one-year limitations period

applicable to filing of 28 U.S.C. § 2255 motions.   See 28 U.S.C.

§ 2255(3).

     Kessler argues that Apprendi should be applied retroactively

to 28 U.S.C. § 2255 motions and that his motion was thus timely.

Kessler’s arguments are foreclosed by our recent decision in

United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002),

petition for cert. filed, (U.S. Feb. 3, 2003)(No. 02-9606).    The

district court’s denial of Kessler’s 28 U.S.C. § 2255 motion is

AFFIRMED.
