HLD-140 (April 2011)                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-1683
                                      ___________

                          WILFREDO FLOREZ-MONTANO,
                                             Appellant
                                      v.

                        WILLIAM A. SCISM, WARDEN;
                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. Civil No. 10-02404)
                      District Judge: Honorable William J. Nealon
                      ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 29, 2011
          Before: McKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges

                              (Opinion filed: June 2, 2011)
                                      _________

                                       OPINION
                                       _________

PER CURIAM.

              Wilfredo Florez-Montano, an inmate currently incarcerated at the Federal

Correctional Institution Allenwood in White Deer, Pennsylvania, appeals from an order

of the United States District Court for the Middle District of Pennsylvania dismissing his
                                            1
petition for a writ of habeas corpus. For the following reasons, we will summarily affirm.

                                             I.

               On October 1, 2002, Florez-Montano was convicted by a jury in the Middle

District of Florida of both possession with intent to distribute and conspiracy to possess

with the intent to distribute a controlled substance while aboard a vessel subject to the

jurisdiction of the United States, in violation of the Maritime Drug Law Enforcement

Act, 46 U.S.C. app. §§ 1903(a), (g) & (j) (2002). He was thereafter sentenced on

February 14, 2003, to 292 months of imprisonment and 60 months of supervised release.

The Court of Appeals for the Eleventh Circuit affirmed Florez-Montano‟s convictions

and sentence on appeal. About five-and-a-half years later, Florez-Montano filed a motion

to vacate his sentence pursuant to 28 U.S.C. § 2255, which the sentencing court denied as

time-barred.

               Florez-Montano subsequently filed a petition for a writ of habeas corpus in

the Middle District of Pennsylvania, pursuant to 28 U.S.C. § 2241. He alleged that his

convictions and sentence were unconstitutional because the sentencing court determined

the identity of the controlled substance underlying his convictions by a preponderance of

the evidence and used that determination to enhance his sentence, instead of submitting

the issue to the jury and requiring proof beyond a reasonable doubt. The case was

referred to a Magistrate Judge, who recommended dismissing the petition on the basis

that relief under § 2241 was not available to Florez-Montano. The District Court adopted

the Magistrate Judge‟s recommendation and dismissed the petition. Florez-Montano
                                              2
timely appealed.

                                            II.

              We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and §

2253(a). “We exercise plenary review over the District Court‟s legal conclusions and

apply a clearly erroneous standard to its factual findings.” Manna v. Schultz, 591 F.3d

664, 665 (3d Cir. 2010) (per curiam). We may summarily affirm if no substantial

question is presented by the appeal. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

              “Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by

which federal prisoners can challenge their convictions or sentences that are allegedly in

violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.

2002). Accordingly, “unless a § 2255 motion would be „inadequate or ineffective,‟ a

habeas corpus petition under § 2241 [attacking a prisoner‟s conviction or sentence]

cannot be entertained by the court.” Cradle v. United States ex rel. Miner, 290 F.3d 536,

538 (3d Cir. 2002) (per curiam); see also 28 U.S.C. § 2255(e). That standard is met “only

where the petitioner demonstrates that some limitation of scope or procedure would

prevent a § 2255 proceeding from affording him a full hearing and adjudication of his

wrongful detention claim,” and is not met simply because a § 2255 motion has been or

would be unsuccessful. Cradle, 290 F.3d at 538-39.

              Florez-Montano contends that § 2255 is an inadequate vehicle for his

current constitutional challenge because he is relying on a change in the law that was

triggered by the Supreme Court‟s opinion in Apprendi v. New Jersey, which held that any
                                             3
fact that enhances a defendant‟s sentence other than a prior conviction must be submitted

to the jury and proved beyond a reasonable doubt. 530 U.S. 466, 490 (2000). Federal

courts, including ours, that had previously permitted the identity of a controlled substance

to be determined by the sentencing court have held, in the wake of Apprendi, that a jury

must make that determination when identity of the controlled substance is used to

increase the maximum sentence imposed on the defendant. See, e.g., United States v.

Henry, 282 F.3d 242, 252-53 (3d Cir. 2002) (vacating sentence that exceeded lowest

statutory maximum because sentencing court‟s determination of drug identity by a

preponderance of the evidence violated Apprendi); United States v. Tinoco, 304 F.3d

1088, 1100 (11th Cir. 2002) (“There is constitutional error under Apprendi . . . only if the

sentencing judge‟s factual finding actually increased the defendant‟s sentence above the

statutory maximum . . . , and only if the fact that led to the enhanced sentence was not

charged in the federal indictment or submitted to the jury for proof beyond a reasonable

doubt.”). Based on that change in the law, Florez-Montano contends that he is actually

innocent, because no jury ever determined the identity of the substance he was convicted

of possessing, and that he should be entitled to pursue his claim under § 2241.1

              Contrary to Florez-Montano‟s assertion that his constitutional argument

was not previously available, the change in law upon which he relies occurred before he

was convicted and sentenced. Thus, he clearly could have raised his constitutional claim

1
  Violations of the Maritime Law Drug Enforcement Act are punishable pursuant to 21
U.S.C. § 960, see 46 U.S.C. App. §§ 1903(g) (2002), which provides penalties of varying
degrees depending on the nature and quantity of the substance involved in the conviction.
                                             4
before the sentencing court and on direct appeal, or via a § 2255 motion on the basis that

counsel was ineffective for having failed to invoke Apprendi, assuming that counsel

indeed failed to do so. Furthermore, since Apprendi does not decriminalize the conduct

for which Florez-Montano was convicted, his case is distinguishable from In re

Dorsainvil, 119 F.3d 245, 248 & 251-52 (3d Cir. 1997), in which we permitted the

petitioner to invoke § 2241 because he alleged that had been convicted for conduct

subsequently deemed by the Supreme Court not to be criminal, but could not pursue his

constitutional claim via § 2255 due to AEDPA‟s restrictions on successive § 2255

motions.2 See Okereke, 307 F.3d at 120-21 (“Unlike the intervening change in law in In

re Dorsainvil that potentially made the crime for which that petitioner was convicted

non-criminal, Apprendi dealt with sentencing and did not render conspiracy to import

heroin, the crime for which [petitioner] was convicted, not criminal.”). Thus, Florez-

Montano cannot establish that § 2255 provides an inadequate and ineffective remedy

such that he is entitled to pursue his claim through § 2241.

              Accordingly, we will summarily affirm the judgment of the District Court

because Florez-Montano‟s appeal does not present a substantial question.




2
  The provisions pursuant to which Florez-Montano was convicted have been revised
and recodified at 46 U.S.C. §§ 70503 & 70506, but the law still criminalizes his conduct.
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