     Case: 14-31066      Document: 00513131928         Page: 1    Date Filed: 07/28/2015




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

                                    No. 14-31066
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            July 28, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk


HECTOR RODRIGUEZ-PENA,

                                                 Plaintiff–Appellant,

versus

T. G. WERLICH,

                                                 Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:14-CV-994




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

       Hector Rodriguez-Pena, federal prisoner # 07935-069, was convicted, in



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-31066

federal court in Puerto Rico, of various offenses, including conspiracy to import,
importation, and possession with the intent to distribute controlled sub-
stances; possessing a firearm during the commission of a drug-trafficking
offense; and aiding and abetting an attempt to kill federal agents who were in
the line of duty. The judgment was affirmed. United States v. Rodriguez-Pena,
Nos. 93-2259, 93-2260, 93-2261, 93-2262, 1995 WL 275691, at *1, *11, *19 (1st
Cir. May 11, 1995).

      Rodriguez-Pena was denied relief under 28 U.S.C. § 2255 in 2003, and in
2009 he was denied authorization to file a successive § 2255 motion. In 2014,
he filed an ostensible 28 U.S.C. § 2241 petition in the United States District
Court for the Western District of Louisiana, where he is imprisoned. Adopting
the report and recommendation of the magistrate judge, that court dismissed
for want of jurisdiction.

      Rodriguez-Pena claims that Rosemond v. United States, 134 S. Ct. 1240
(2014), requires reversal of his conviction of aiding and abetting the possession
of a firearm in furtherance of a drug-trafficking offense. Because he challenges
the validity of his conviction, his petition was properly construed as a § 2255
motion. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000).

      Even if Rosemond applies retroactively, Rodriguez-Pena may not pro-
ceed with a § 2241 petition under the savings clause of § 2255(e), given that he
has not established that pre-Rosemond law precluded his claim. In its decision
in the direct appeal, the First Circuit made clear that the government had been
required to prove that Rodriguez-Pena had advance knowledge of the firearms
used in the drug-trafficking offense. See Rodriguez-Pena, 1995 WL 275691,
at *12; see also United States v. DeMasi, 40 F.3d 1306, 1316 (1st Cir. 1994).
Thus, it “was not error” to determine that § 2241 was unavailable. See Jeffers
v. Chandler, 253 F.3d 827, 831 (5th Cir. 2001).


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                                  No. 14-31066

      Because it was not the sentencing court, “the district court did not have
jurisdiction to treat” Rodriguez-Pena’s petition as a § 2255 motion. Solsona v.
Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987). The district court was
correct in dismissing.

      AFFIRMED.




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