     Case: 12-41059       Document: 00512250297         Page: 1     Date Filed: 05/22/2013




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

                                                                            FILED
                                                                           May 22, 2013
                                     No. 12-41059
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

LESLIE REDMOND,

                                                  Petitioner-Appellant

v.

JODY R. UPTON, Warden, FCC Beaumont - Medium,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:11-CV-146


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Leslie Redmond, federal prisoner # 31204-177, has appealed the district
court’s judgment dismissing his petition for a writ of habeas corpus challenging
his convictions for violations of 18 U.S.C. § 924(c)(1)(A). Redmond contends that
he was convicted of a nonexistent offense in light of the Supreme Court’s opinion
in United States v. O’Brien, 130 S. Ct. 2169 (2010), and that the district court
erred in refusing to permit him to challenge his convictions in a 28 U.S.C. § 2241
petition under the Savings Clause of 28 U.S.C. § 2255(e).                    See Jeffers v.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41059     Document: 00512250297     Page: 2   Date Filed: 05/22/2013

                                  No. 12-41059

Chandler, 253 F.3d 827, 830 (5th Cir. 2001). Redmond bears the burden of
showing, inter alia, that his claims are “based on a retroactively applicable
Supreme Court decision which establishes that the petitioner may have been
convicted of a nonexistent offense.” Reyes-Requena v. United States, 243 F.3d
893, 904 (5th Cir. 2001).
      Redmond argues that his convictions are invalid because the Government
failed to prove beyond a reasonable doubt that he used, carried, or brandished
a firearm, an element of his convictions. In O’Brien, the Supreme Court held
that the machine gun provision under § 924(c)(1)(B)(ii) was an element of the
offense rather than a sentencing factor. O’Brien, 130 S. Ct. at 2173, 2180.
O’Brien does not provide a basis for Redmond’s claim, as Redmond makes no
assertion that his convictions or sentences were based on the possession of a
machine gun or other type of firearm proscribed in § 924(c)(1)(B)(ii). There was
no dispute in O’Brien that the Government was required to prove as an element
of an offense under § 924(c) that a firearm was used, carried, or possessed by the
defendant. O’Brien, 130 S. Ct. at 2172. Such a requirement had been made
explicit by the Supreme Court at least by its decision in United States v.
Rodriguez-Moreno, 526 U.S. 275, 280 (1999). Redmond cannot show that he was
convicted of a nonexistent offense in light of O’Brien. See Reyes-Requena, 243
F.3d at 904.
      AFFIRMED.




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