     Case: 11-10935     Document: 00511893341         Page: 1     Date Filed: 06/20/2012




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

                                                                            FILED
                                                                           June 20, 2012
                                     No. 11-10935
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DONNIE LEE YOUREE,

                                                  Petitioner-Appellant

v.

REBECCA TAMEZ, Warden,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CV-935


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Donnie Lee Youree, federal prisoner # 91069-020, appeals the dismissal
for lack of jurisdiction of his 28 U.S.C. § 2241 petition challenging his
classification as an armed career offender under 18 U.S.C. § 924(e)(1) pursuant
to his federal conviction for being a felon in possession of a firearm. Youree
argues that he is actually innocent of the career offender enhancement on
account of the vacatur of his 1972 predicate conviction for voluntary
manslaughter.       This argument was unsuccessfully raised in his untimely

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10935    Document: 00511893341     Page: 2   Date Filed: 06/20/2012

                                 No. 11-10935

28 U.S.C. § 2255 motion. Youree v. United States, Nos. 5:09-CV-90062 HL,
5:02-CR-62 HL, 2009 WL 6338019 (M.D. Ga. Sept. 17, 2009) (unpublished).
      The Government has moved for summary affirmance or, in the alternative,
for an extension of time to file a brief. Youree’s argument that his actual
innocence claim is cognizable in a § 2241 petition is foreclosed by Kinder v.
Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000), which held that a petitioner’s
argument that he is actually innocent of being a career offender is not the type
of argument that warrants review under § 2241 because the petitioner is not
asserting that he is actually innocent of the underlying crime for which he was
convicted.
      The Government’s motion for summary affirmance is GRANTED, the
Government’s alternative motion for an extension of time to file a brief is
DENIED, and the judgment of the district court is AFFIRMED.




                                       2
