               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 02-40170
                        Conference Calendar



RICHARD M. ANCIRA,

                                         Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

                                         Respondent-Appellee.

                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                         USDC No. 1:01-CV-294
                         --------------------
                            August 20, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

     Richard M. Ancira, federal prisoner # 52912-080, appeals the

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

district court found that Ancira 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.




     *
        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that this opinion should not be published and is not precedent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. 02-40170
                                 -2-

     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.     See Pack v.

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.   See 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, Ancira argues that the increase in his sentence

based on his prior convictions violates Apprendi v. New Jersey,

530 U.S. 460 (2000).   His argument fails.    First, in Kinder v.

Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000), cert. denied, 531

U.S. 1132 (2001), this court held that a claim of actual

innocence of a career-offender enhancement is not properly raised

in a 28 U.S.C. § 2241 petition because the petitioner is not

claiming actual innocence of the crime of conviction, only of the

enhancement.   Second, Apprendi specifically excepted prior

convictions as elements of the offense.      See Apprendi, 530 U.S.

at 490.   Third, there is no Apprendi violation even if Apprendi
                           No. 02-40170
                                -3-

applied, because Ancira was sentenced below the statutory maximum

of imprisonment.   See 21 U.S.C. § 841(b)(1)(B)(i).   Accordingly,

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