Oscar v. Chandler

* 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that this opinion should not be published and is not precedent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. 01-40791
Conference Calendar
FRANTZ OSCAR,
Petitioner-Appellant,
versus
ERNEST V. CHANDLER, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-121
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October 29, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Frantz Oscar, federal prisoner No. 25832-083, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition
challenging his convictions and life sentences for engaging in a
continuing criminal enterprise (CCE).
Oscar argues that the 28 U.S.C. § 2255 savings clause
authorizes him to seek relief under § 2241 because defects in the
indictment deprived the trial court of jurisdiction to convict
him of the CCE charges. Oscar’s jurisdictional argument is

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No. 01-40791
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** 530 U.S. 466 (2000).
without merit. See United States v. Cotton, 122 S. Ct. 1781,
1785-86 (2002); United States v. Longoria, 298 F.3d 367 (5th
Cir.) (en banc), petition for cert. filed, (U.S. Oct. 10, 2002)
(No. 02-6898).
Oscar argues that Apprendi v. New Jersey** dictates that he
is actually innocent of the CCE charges because the indictment
did not allege quantities of drugs adequate to support a
conviction and sentence under 21 U.S.C. § 848(b)(2)(A). Oscar’s
arguments concerning § 848(b)(2)(A) are irrelevant because he was
not convicted of violating that section of the CCE statute.
Oscar was convicted of engaging in a continuing criminal
enterprise in violation of § 848(a), (c), and of two counts of
murder in furtherance of a continuing criminal enterprise in
violation of § 848(e)(1)(A) and 18 U.S.C. § 2. Oscar’s life
sentences do not violate Apprendi because they are within the
statutory maximum for his CCE convictions. United States v.
Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert. denied, 531 U.S.
1182 (2001); see § 848 (a), (e)(1)(A). Furthermore, Apprendi
does not apply retroactively to cases on collateral review and an
Apprendi claim does not satisfy the requirements of 28 U.S.C.
§ 2255's savings clause. See Wesson v. U.S. Penitentiary,
Beaumont, TX, 305 F.3d 343 (5th Cir. 2002).

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No. 01-40791
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*** 526 U.S. 813 (1999).
We note that Oscar has abandoned any argument that he is
entitled to § 2241 relief based on Richardson v. Unites States.***
See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
AFFIRMED.

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