                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 21, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40762
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ELISANDRO VARGAS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 5:01-CV-184
                     USDC No. 5:99-CR-505-1
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Elisandro Vargas, federal prisoner # 06615-018, appeals from

the denial of his 28 U.S.C. § 2255 motion challenging his

conviction for possession with intent to distribute marijuana.

The district court granted a certificate of appealability (COA)

on the issue whether Apprendi v. New Jersey, 530 U.S. 466 (2000),

was retroactively applicable to initial § 2255 motions.

     During the pendency of Vargas’s § 2255 appeal, we rendered

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

     *
       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this opinion should not be published and is not precedent except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. 04-40762
                                -2-

held that Apprendi did not apply retroactively on initial

collateral review, thereby foreclosing the issue on which a COA

was granted.   Vargas argues, however, that because Apprendi was

decided during the pendency of his direct appeal, its new

procedural rule is retroactively applicable to his case.    Vargas,

however, did not raise an Apprendi-type issue on direct appeal.

Cf. Griffith v. Kentucky, 479 U.S. 314, 328 (1987).    Instead, he

raised an Apprendi issue for the first time in his initial § 2255

motion and, as such, is not entitled to relief.     See Brown, 305

F.3d at 305.

     In his supplemental brief, Vargas argues pursuant to Blakely

v. Washington, 542 U.S. 296 (2004), that he was illegally

sentenced beyond the statutory maximum.    Although the Supreme

Court held Blakely applicable to the Sentencing Guidelines in

United States v. Booker, 543 U.S. 220, 232-33 (2005), we have

recently held that Booker--like Apprendi--is not retroactively

applicable to initial § 2255 motions.     United States v. Gentry,

432 F.3d 600, 604 (5th Cir. 2005).

     AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED.
