               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 99-51201
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

APOLONIO PASTRANO, also
known as Polo,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. SA-99-CV-380
                           SA-93-CR-184-2
                       --------------------
                         December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Apolonio Pastrano, federal prisoner # 65249-080, is

appealing the district court’s denial of his 28 U.S.C. § 2255

motion challenging his conviction for conspiracy to possess with

intent to distribute marijuana.    Relying on Apprendi v. New

Jersey, 530 U.S. 466 (2000), he argues that his conviction should

be set aside because the quantity of drugs upon which he was


     *
        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that this opinion should not be published and is not precedent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. 99-51201
                                -2-

sentenced was not alleged in the indictment and was not submitted

to the jury and proved beyond a reasonable doubt.

     In United States v. Brown, 305 F.3d 304, 305-09 (5th Cir.

2002), a 28 U.S.C. § 2255 case, the court determined that the new

rule of criminal procedure announced in Apprendi does not apply

retroactively on collateral review of initial 28 U.S.C. § 2255

motions.   Therefore, Pastrano’s argument based on Apprendi fails.

The district court’s denial of Pastrano’s 28 U.S.C. § 2255 motion

is AFFIRMED.

     The Government’s motion for a summary affirmance is DENIED.
