                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________           U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                   May 24, 2006
                                No. 05-15121                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                     D. C. Docket No. 05-22074-CV-UUB

COLEY QUINN,



                                                              Petitioner-Appellant,

                                     versus

JORGE PASTRANA, Warden,

                                                             Respondent-Appellee.


                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                 (May 24, 2006)

Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

     Coley Quinn, a federal prisoner, appeals pro se the dismissal of his section
2241 petition for writ of habeas corpus. Because the district court correctly

concluded that the savings clause provision of section 2255 does not apply to

Quinn’s petition, we affirm.

      The availability of habeas corpus relief under section 2241 is a question of

law we review de novo. Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir.

2005). Under the “‘savings clause’ of [section] 2255 . . . a prisoner [may] file a

[section] 2241 petition only if an otherwise available remedy under [section] 2255

is ‘inadequate or ineffective’ to test the legality of his detention. Id. at 945. We

have held that the savings clause only applies if the petitioner can satisfy three

elements.

      1) that claim is based upon a retroactively applicable Supreme Court
      decision; 2) the holding of that Supreme Court decision establishes the
      petitioner was convicted for a nonexistent offense; and, 3) circuit law
      squarely foreclosed such a claim at the time it otherwise should have
      been raised in the petitioner’s trial, appeal, or first [section] 2255
      motion.

Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999).

      The savings clause does not apply to either claim raised in Quinn’s petition.

Quinn argues that his sentence was calculated in violation of United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and that his conviction for using or

carrying a firearm is invalid under Arthur Anderson, L.L.P. v. United States, 544

U.S. 696, 125 S. Ct. 2129 (2005). Both claims fail. First, because Booker is not a

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retroactively applicable Supreme Court decision, Varela v. United States, 400 F.3d

864, 867-68 (11th Cir. 2005), Quinn cannot satisfy the first element required for

the savings clause to apply to his Booker claim. Second, Quinn’s Arthur Anderson

claim fails because, although Arthur Anderson might apply retroactively, Arthur

Anderson interpreted section 1512(b) and is not relevant to section 924(c), the

provision under which Quinn was convicted. In addition, even if Arthur Anderson

was applicable in Quinn’s case, Quinn’s claim would still fail because Arthur

Anderson did not establish that Quinn was convicted of a nonexistent offense.

Quinn’s assertion that he is not guilty of the offense does not establish that the

offense does not exist.

      The dismissal of Quinn’s section 2241 petition is

      AFFIRMED.




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