     Case: 18-40180      Document: 00514779749         Page: 1    Date Filed: 01/02/2019




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

                                                                                FILED
                                    No. 18-40180                          January 2, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
RICHARD RIVERA,

                                                 Petitioner-Appellant

v.

DEREK EDGE, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:16-CV-192


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Richard Rivera, federal prisoner # 63745-066, appeals the dismissal of
his 28 U.S.C. § 2241 petition. Rivera was convicted of two drug offenses in the
Eastern District of Pennsylvania and sentenced as a career offender to
concurrent 168-month terms of imprisonment and six years of supervised
release. In his petition, he argued that in light of Mathis v. United States, 136
S. Ct. 2243 (2016) and subsequent applications of Mathis, his prior convictions


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40180     Document: 00514779749     Page: 2   Date Filed: 01/02/2019


                                  No. 18-40180

are no longer predicate offenses for the purpose of his career offender
enhancement.
      The district court’s dismissal of Rivera’s § 2241 petition is reviewed de
novo. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). To pursue relief under
§ 2241, Rivera was required to satisfy the 28 U.S.C. § 2255(e) savings clause
by establishing that his claim (1) “is based on a retroactively applicable
Supreme Court decision which establishes that the petitioner may have been
convicted of a nonexistent offense,” and (2) “was foreclosed by circuit law at the
time when the claim should have been raised in the petitioner’s trial, appeal,
or first § 2255 motion.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th
Cir. 2001).
      Mathis implicates only the validity of sentencing enhancements, and it
does not establish that Rivera was convicted of a nonexistent offense. See
Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005); Kinder v. Purdy,
222 F.3d 209, 213-14 (5th Cir. 2000). Therefore, the district court did not err
in determining that Rivera failed to meet the requirements of the § 2255(e)
savings clause. Rivera’s arguments to the contrary are unpersuasive. His
claims that he is challenging a fundamental sentencing defect and that he is
unable to satisfy the § 2255(h) requirements to file a successive § 2255 motion
do not entitle him to proceed under § 2241. See Reyes-Requena, 243 F.3d at
904; Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). He fails to articulate
how this court’s reasoning in Santillana v. Upton, 846 F.3d 779 (5th Cir. 2017),
is relevant to his § 2241 claim. Accordingly, we affirm the district court’s
judgment of dismissal, with the modification that the dismissal was with
prejudice as to the question of jurisdiction over the § 2241 petition and without
prejudice as to all other issues. See Pack, 218 F.3d at 454.
      AFFIRMED AS MODIFIED.



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