     Case: 15-40192      Document: 00513398157         Page: 1    Date Filed: 02/26/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                    No. 15-40192
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                        February 26, 2016
                                                                            Lyle W. Cayce
DANIEL ALMONTE,                                                                  Clerk


                                                 Petitioner-Appellant

v.

H. VASQUEZ, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:14-CV-552


Before JOLLY, PRADO, and ELROD, Circuit Judges.
PER CURIAM: *
       Daniel Almonte, federal prisoner # 04322-748, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition for habeas corpus relief.
Almonte argued in the district court that the sentencing court erred in finding
that his statutory mandatory minimum sentence for the subject offense was
enhanced from 10 to 20 years pursuant to 21 U.S.C. § 851.                      Specifically,
Almonte averred that his prior conviction was a misdemeanor and, as such,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-40192     Document: 00513398157    Page: 2   Date Filed: 02/26/2016


                                 No. 15-40192

§ 851—which only applies to prior felony convictions—could not have been the
basis for an increase in his statutory mandatory minimum sentence from 10 to
20 years. As a result, Almonte argued that he was “actually innocent” of his
20-year sentence and that relief was appropriate under the savings clause of
28 U.S.C. § 2255(e). In support, Almonte relied on Alleyne v. United States,
133 S. Ct. 2151 (2013), wherein the Supreme Court held that any fact that
increases a defendant’s mandatory minimum sentence must be presented to a
jury and found beyond a reasonable doubt. Id. at 2158. According to Almonte,
because the fact of his prior conviction was never adjudicated beyond a
reasonable doubt by a jury, the sentencing court’s application of § 851 to his
sentence was unconstitutional and contrary to the Supreme Court’s holding in
Alleyne.
      The district court denied relief, concluding that Almonte failed to meet
the requirements of the savings clause under § 2255(e), which allows a federal
prisoner to challenge his conviction under § 2241 if the remedies provided by
§ 2255 are “inadequate or ineffective to test the legality of his detention.”
When addressing the denial of a § 2241 petition, we review the district court’s
factual findings for clear error and its conclusions of law de novo. Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
      A petitioner seeking to establish that his § 2255 remedy was inadequate
or ineffective must make a claim “(i) that is based on a retroactively applicable
Supreme Court decision which establishes that the petitioner may have been
convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at
the time when the claim should have been raised in the petitioner’s trial,
appeal, or first § 2255 motion.” Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001).




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    Case: 15-40192     Document: 00513398157     Page: 3   Date Filed: 02/26/2016


                                  No. 15-40192

      Almonte fails to make the required showing for relief under § 2255(e) for
the following reasons. First, prior to Alleyne, the Supreme Court stated in
Almendarez-Torres v. United States that, for the purposes of sentencing
enhancements, a prior conviction is not a fact that must be found by a jury
beyond a reasonable doubt. 523 U.S. 224, 239-47 (1998). In Alleyne, the
Supreme Court explained that its holding did not disturb the Almendarez-
Torres exception. Alleyne, 133 S. Ct. at 2160 n.1. A fortiori, this court has held
that, for the purpose of applying the § 851 sentencing enhancement, the
question of whether a defendant had a prior felony conviction is not required
to be submitted to a jury. United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014).   Second, this court has specifically held that the Supreme Court’s
holding in Alleyne is not retroactive. In re Kemper, 735 F.3d 211, 212 (5th Cir.
2013). Finally, Almonte’s actual innocence claim is unavailing. See McQuiggin
v. Perkins, 133 S. Ct. 1924, 1928 (2013); Foster v. Quarterman, 466 F.3d 359,
367-68 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED.            The motion to
supplement the brief is DENIED.




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