               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-51063
                          Summary Calendar



JOHNNY M. GONZALES,

                                         Petitioner-Appellant,

versus

R. D. MILES, Warden,

                                         Respondent-Appellee.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                       USDC No. A-01-CV-282-JN
                         --------------------
                            April 30, 2002

Before DeMOSS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

     Johnny M. Gonzales, federal prisoner # 53504-080, appeals

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

The district court found that Gonzales had not satisfied the

requirements of the “savings clause” of 28 U.S.C. § 2255, which

would allow him to raise his claims in a 28 U.S.C. § 2241

petition.

     Under the savings clause, if the petitioner can show that 28

U.S.C. § 2255 provides him with an inadequate or ineffective

remedy, he may proceed by way of 28 U.S.C. § 2241.     Pack v.

     *
        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that this opinion should not be published and is not precedent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. 01-51063
                                -2-

Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).   A petitioner must

show that 1) his claims are based on a retroactively applicable

Supreme Court decision that establishes that the petitioner may

have been convicted of a nonexistent offense, and 2) his claims

were foreclosed by circuit law at the time when the claims should

have been raised in his trial, appeal, or first 28 U.S.C. § 2255

motion.   Reyes-Requena v. United States, 243 F.3d 893, 904 (5th

Cir. 2001).   The burden of coming forward with evidence to show

the inadequacy of a 28 U.S.C. § 2255 motion “rests squarely on

the petitioner.”   Jeffers v. Chandler, 253 F.3d 827, 830 (5th

Cir. 2001)

     On appeal, Gonzales argues that his sentence was based on a

drug quantity described in the pre-sentence report rather than

the quantity alleged in the indictment; that his sentence was

improperly enhanced for his role in the offense because the

district court considered testimony given outside Gonzales’s

presence; counsel provided ineffective assistance by depriving

him of the opportunity to testify and by not challenging the

failure of the indictment to allege a drug quantity; and the

court erred by imposing a $50,000 fine.

     Liberally construed, several of these claims are based on

Apprendi v. New Jersey, 530 U.S. 466 (2000).   See Haines v.

Kerner, 404 U.S. 519, 520 (1972).   However, Gonzales’s concurrent

240-month imprisonment terms for conspiracy and possession of

cocaine with intent to distribute do not violate Apprendi because

they do not exceed the 20-year maximum of 21 U.S.C.

§ 841(b)(1)(C), which sets forth the baseline penalty range for
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                                  -3-

cocaine.   See United States v. Clinton, 256 F.3d 311, 314 (5th

Cir.), cert. denied, 122 S. Ct. 492 (2001) (holding that sentence

enhanced within a baseline statutory range based upon a finding

of drug quantity does not violate Apprendi).     His 60-month

sentence for possession of marijuana does not exceed the 60-month

statutory maximum under 21 U.S.C. § 841(b)(1)(D), the baseline

penalty range for marijuana.    In addition, the $50,000 fine was

well within the $1,000,000 statutory maximum of 21 U.S.C.

§ 841(b)(1)(C).

     Gonzales’s other claims, including that his sentence was

improperly enhanced for his role in the offense, that counsel

deprived him of the opportunity to testify, and that the court

erred in calculating the fine amount, all relate to his

conviction and sentence, and Gonzales has not satisfied the

savings clause by showing that these claims are based on a

retroactively applicable Supreme Court decision which establishes

that he may have been convicted of a nonexistent offense.       See

Reyes-Requena, 243 F.3d at 904.    The appropriate vehicle to

address these types of claims is a 28 U.S.C. § 2255 motion, not a

28 U.S.C. § 2241 petition.     See id. at 901.

     Gonzales has not shown why 28 U.S.C. § 2255 is an inadequate

or ineffective remedy with respect to these issues and has not

addressed the requirements of the savings clause.    Accordingly,

the dismissal of his 28 U.S.C. § 2241 petition is AFFIRMED.      His

motion for appointment of counsel is DENIED.
