                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS     February 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-11103
                        Conference Calendar



DON BENNY ANDERSON,

                                    Petitioner-Appellant,

versus

L.E. FLEMING, Warden Federal Medical Center-Fort Worth,

                                    Respondent-Appellee.


                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:03-CV-1144-A
                       --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Don Benny Anderson, Federal prisoner # 060260-026, has

appealed the district court’s judgment dismissing his petition

for a writ of habeas corpus, under 28 U.S.C. § 2241, challenging

a conviction, in the United States District Court for the Eastern

District of Virginia, for conspiracy, interstate transportation

to commit arson, and damaging a building with an explosive

device, in violation of 18 U.S.C. §§ 371, 1952, and 844(i).

Anderson contends that the trial court was without jurisdiction

     *
       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this opinion should not be published and is not precedent except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. 03-11103
                                  -2-

because the Government failed to establish that his offense

resulted in a “commercial injury” and so affected interstate

commerce.    Because the Government did not make such a showing, he

contends, the Government lacked “standing” to prosecute him.

     Anderson contends that he should be permitted to pursue this

claim in a 28 U.S.C. § 2241 proceeding under the Savings Clause

of 28 U.S.C. § 2255 because this claim is based upon a novel

legal theory.   Anderson does not contend that the claim he wishes

to assert is based upon a retroactively applicable Supreme Court

decision which establishes that he may have been convicted of a

nonexistent offense.     Nor has he shown that his claim was

foreclosed previously by circuit precedent.     Accordingly, he has

not carried his burden of showing that his claim may be asserted

under the Savings Clause.     See Reyes-Requena v. United States,

243 F.3d 893, 904 (5th Cir. 2001).     The appeal is dismissed as

frivolous.    See Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983); 5TH CIR. R. 42.2.

     APPEAL DISMISSED.
