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

                                                FILED
                                                                  June 16, 2009
                                No. 08-10914
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

NATIVIDAD SILVA, JR

                                           Petitioner-Appellant

v.

DAN BERKEBILE, Warden

                                           Respondent-Appellee


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:08-CV-1240


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      In January 1993, Natividad Silva, Jr., now federal prisoner # 23368-077,
was convicted by guilty plea for robbery affecting commerce in Counts 1, 2, 3,
and 5 and for possession of a firearm during a crime of violence in Counts 4 and
6. He was sentenced to concurrent 97-month terms of imprisonment on Counts
1, 2, 3, and 5; a consecutive 60 month-term of imprisonment on Count 4; and a
consecutive 240-month term of imprisonment on Count 6. He appeals from the



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-10914

district court’s dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction.
This court reviews a district court’s dismissal on the pleadings of a § 2241
petition de novo. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
      In Count 6, Silva and Jesus Silva (hereinafter referred to as Jesus) were
charged with knowingly using and carrying a firearm during and in relation to
a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c)(1). Silva concedes
that the record established that he robbed an armored truck with the use of a
firearm and that Jesus provided him with transportation to and from the scene
of the crime. Silva argues that, in light of Bailey v. United States, 516 U.S. 137
(1995), Jesus should not have been convicted of using or carrying a firearm in
violation of § 924(c)(1). Silva concludes that he could not have been convicted of
aiding or abetting Jesus’s violation of § 924(c)(1) and that he is therefore actually
innocent of Count 6.
      When a defendant is charged as both a principal and as an aider or
abettor, the principal need not be identified and the defendant may be convicted
as either a principal or an aider or abettor. United States v. Pearson, 655 F.2d
569, 570-71 (5th Cir. 1981).     As Silva failed to show that he was actually
innocent of Count 6, he did not meet the “savings clause” of 28 U.S.C. § 2255(e)
by showing that the remedy provided under § 2255 is “inadequate or ineffective”
to test the legality of his detention. See Christopher v. Miles, 342 F.3d 378, 382
(5th Cir. 2003).
      Silva’s appeal is without arguable merit and therefore frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is dismissed. See 5 TH C IR. R. 42.2. Silva is warned that further
frivolous filings will result in the imposition of sanctions.
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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