                                                        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. 04-40296
                          Conference Calendar



SAMUEL DEWITT-MCCOTTER,

                                      Petitioner-Appellant,

versus

UNITED STATES SENTENCING COMMISSION,

                                      Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                   USDC No. 1:04-CV-12-MAC-ESH
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Samuel DeWitt-McCotter, federal prisoner # 12687-056, was

convicted of conspiring to distribute cocaine and using a firearm

during the commission of a drug trafficking offense.     He appeals

the district court’s dismissal of his 28 U.S.C. § 2241 petition

challenging this conviction.    DeWitt-McCotter argues that the

district court erred by holding that his 28 U.S.C. § 2241

petition was subject to dismissal because it did not warrant

application of the “savings clause” set forth in 28 U.S.C.


     *
       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this opinion should not be published and is not precedent except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. 04-40296
                                 -2-

§ 2255.   He contends that his sentence is not authorized because

it violates the Ex Post Facto Clause and, in light of Bailey v.

United States, 516 U.S. 137 (1995), he was convicted of a

nonexistent offense.    The district court found that DeWitt-

McCotter had raised a Bailey claim in a prior motion before the

sentencing court.

     Because DeWitt-McCotter’s claims fail to meet the requisite

standard, the “savings clause” is not applicable to his 28 U.S.C.

§ 2241 petition.    See Reyes-Requena v. United States, 243 F.3d

893, 904 (5th Cir. 2001).    Accordingly, the district court’s

judgment is AFFIRMED.
