     Case: 11-51198     Document: 00511886082          Page: 1    Date Filed: 06/13/2012




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

                                                                             FILED
                                                                            June 13, 2012
                                     No. 11-51198
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BART ELLIS SHOUPE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:11-CV-827


Before STEWART, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Bart Ellis Shoupe, federal prisoner # 44194-080, who was convicted of drug
trafficking in 2004, and whose subsequent direct appeal, and post-conviction
filing pursuant to 28 U.S.C. § 2255, were denied, now has filed a 28 U.S.C.
§ 2241 petition challenging his sentence for drug trafficking. The district court
recharacterized his petition as a 28 U.S.C. § 2255 motion and dismissed it as a
successive and unauthorized motion.               Shoupe now seeks a certificate of



       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-51198

appealability (COA) and argues that he may bring his challenge as a § 2241
petition pursuant to the “savings clause” of § 2255. He also moves for leave to
proceed in forma pauperis (IFP) on appeal.
      Because Shoupe sought relief under § 2241, he is not required to obtain a
COA to appeal the district court’s denial of § 2241 relief. See Padilla v. United
States, 416 F.3d 424, 425 (5th Cir. 2005). His motion for a COA, therefore, is
denied as unnecessary.
      Because Shoupe challenged his sentence, and because § 2255 provides the
primary means of collaterally attacking a federal sentence, the district court did
not err by recharacterizing Shoupe’s petition as a § 2255 motion. Tolliver v.
Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). Before Shoupe may file a second or
successive § 2255 motion, he must obtain an order from this court authorizing
the district court to consider a second or successive application. 28 U.S.C.
§§ 2244(b)(3), 2255(h). Shoupe has not sought or obtained leave to file a second
or successive § 2255 motion. Therefore the district court properly dismissed his
motion as successive and unauthorized. See § 2255(h).
      Under the “savings clause” of § 2255, Shoupe may attack his federal
sentence under § 2241 if he shows that § 2255 is “inadequate or ineffective to
test the legality of his detention.” § 2255(e). The bar against filing successive
§ 2255 motions does not render § 2255 inadequate or ineffective. Tolliver, 211
F.3d at 878. The savings clause applies only to claims that were “foreclosed by
circuit law at the time when the claim should have been raised in the petitioner’s
trial, appeal, or first § 2255 motion,” if the claims are “based on a retroactively
applicable Supreme Court decision which establishes that petitioner may have
been convicted of a nonexistent offense.” Reyes-Requena v. United States, 243


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                                 No. 11-51198

F.3d 893, 904 (5th Cir. 2001).
         Shoupe asserts that, because of Apprendi v. New Jersey, 530 U.S. 466
(2000), he was charged and then sentenced for the drug amount alleged in his
indictment. He further asserts that, if he had been sentenced after United
States v. Salto, 220 F. App’x 299 (5th Cir. 2007) (unpublished), his sentence
would not have been based on that particular drug amount. He thus contends,
in a loose analogy to Reyes-Requena, that Salto renders him “innocent” of the
sentence imposed under the sentencing regime in force between Apprendi and
Salto.
         Apprendi did not foreclose challenges to drug quantities used for
sentencing but rather increased the Government’s burden of proving the drug
quantities required for enhanced statutory maximum penalties. See Apprendi,
530 U.S. at 490 (holding that a “fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt”). In addition, Salto was not a Supreme Court
decision and did not establish that Shoupe may have been convicted of “a
nonexistent offense.” See Reyes-Requena, 243 F.3d at 904; Salto, 220 F. App’x
at 300-01. Shoupe has not demonstrated that his claim is within the savings
clause. See § 2255(e). The judgment of the district court is therefore affirmed.
Because there is no viable ground for an appeal, Shoupe’s motion for leave to
appeal in forma pauperis (IFP) is denied.
         JUDGMENT AFFIRMED; COA DENIED; IFP DENIED.




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