* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-50713

Summary Calendar

 

RODRIGO BARRA GONZALEZ

Petitioner - Appellant

v.

TROY WILLIAMSON, Warden of La Tuna

Respondent - Appellee

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-02-CV-234-DB

--------------------

October 28, 2002

Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Rodrigo Barra Gonzalez, federal prisoner # 05197-033, was

convicted in the Southern District of Indiana by a jury of

conspiracy to distribute marijuana (21 U.S.C. § 841(a)(1) and

846) and two counts of engaging in financial transactions with

proceeds from unlawful activities (18 U.S.C. § 1956(a)(1)). He

was sentenced to 235 months’ imprisonment.

Gonzalez argues that the district court erred in construing

his 28 U.S.C. § 2241 petition as a 28 U.S.C. § 2255 motion. He
No. 02-50713

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** This argument is without merit. FED. R. CIV. P. 60(b) is

not applicable to seek relief from a criminal judgment. His

reliance on Rule 60(b) as a vehicle for relief would amount to

nothing more than a successive § 2255 motion. Kutzner v.

Cockrell, F.3d , (5th Cir. Aug. 7, 2002, No. 02-20857),

2002 WL 1858794, cert. denied, S. Ct. , 2002 WL 1808591

(Aug. 7, 2002).

argues that relief under 28 U.S.C. § 2241 is warranted based on

actual innocence. He argues that he can proceed under 28 U.S.C.

§ 2241 because 28 U.S.C. § 2255 was an inadequate and ineffective

remedy. He argues that he was denied the opportunity to present

his constitutional claims in a 28 U.S.C. § 2255 proceeding

through no fault of his own. He also argues that the district

court abused its discretion in not addressing his jurisdictional

claims pursuant to Federal Rule of Civil Procedure 60(b).** His

jurisdictional claim is that his indictment was faulty because

all of the facts which were used to determine his sentence were

not charged in the indictment. He cites the Fourth Circuit’s

decision in United States v. Cotton, 261 F.3d 397, 405 (4th Cir.

2001), which he argues requires that all facts legally essential

to the punishment be alleged in the indictment. He states that

his claim does not rely upon Apprendi v. New Jersey, 530 U.S. 466

(2000).

Gonzalez essentially argues that his jurisdictional claim

should be considered in this 28 U.S.C. § 2241 proceeding under

the savings clause. A 28 U.S.C. § 2241 petition that attacks

custody resulting from a federally imposed sentence may be

entertained if the petitioner establishes that the remedy
No. 02-50713

-3-

*** The Supreme Court reversed the Fourth Circuit’s decision

upon which Gonzalez relies.

provided for under 28 U.S.C. § 2255 is inadequate or ineffective

to test the legality of his detention. Tolliver v. Dobre, 211

F.3d 876, 878 (5th Cir. 2000). Thus, Gonzalez is correct that

the district court had jurisdiction to consider his savings

clause claims in this 28 U.S.C. § 2241 petition.

Since Gonzalez filed his brief, this court rejected a

similar jurisdictional argument in a 28 U.S.C. § 2241 case in

Wesson v. U.S. Penitentiary Beaumont, Tx., F.3d , (5th

Cir. Sept. 5, 2002, No. 01-41000), 2002 WL 31006173 at * 2. The

petitioner in Wesson argued that his indictment was defective

under Apprendi because it did not allege a drug quantity, and

that the district court was deprived of jurisdiction. Citing

United States v. Cotton, 122 S. Ct. 1781, 1785-86 (2002),***

United States v. Longoria, 298 F.3d 367 (5th Cir. 2002 (en banc),

and United States v. Gonzalez, 259 F.3d 355 (5th Cir. 2002) (en

banc), this court held that the petitioner’s claim that his

defective indictment deprived the court of jurisdiction was

meritless because defects in an indictment are nonjurisdictional. 

Wesson, 2002 WL 31006173 at * 2.

Although Gonzalez disavows reliance on Apprendi in his

brief, he based his argument on Apprendi in the district court,

and his arguments are based in part on the reasoning of Apprendi,

which held that sentencing factors which increase the sentence
No. 02-50713

-4-

beyond the statutory maximum must be charged in the indictment

and proved beyond a reasonable doubt to the jury.

In Wesson, 2002 WL 31006173 at * 3, this court also rejected

the petitioner’s savings clause argument, holding that the

petitioner could not satisfy the first prong of Reyes-Requena

because Apprendi is not retroactive on collateral review, citing

United States v. Brown, F.3d , (5th Cir. Sept. 5, 2002,

No. 01-10116), 2002 WL 2027346 at * 6.

For these reasons, the district court’s dismissal of

Gonzalez’s 28 U.S.C. § 2241 petition IS AFFIRMED.