                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-7496


CARLOS DEMORIS DARDEN,

                 Petitioner - Appellant,

          v.

D.R. STEPHENS,

                 Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
Chief District Judge. (5:09-hc-02152-FL)


Submitted:   March 31, 2011                 Decided:   April 29, 2011


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Carlos Demoris Darden, Appellant Pro Se. Michael Gordon James,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Carlos      Darden       appeals       the    district       court’s       judgment

dismissing his 28 U.S.C.A. § 2241 (West Supp. 2010) petition for

a writ of habeas corpus.                 We affirm.

               Darden pled guilty in 2005 to one count of possession

of a firearm by a convicted felon in violation of 18 U.S.C.

§ 922(g)(1)          (2000)    and       was     sentenced       as     a    career       offender

pursuant       to     U.S.    Sentencing          Guidelines       Manual          § 2K2.1(a)(2)

(2003).    He appealed, although he did not challenge his career

offender enhancement.                   We affirmed.          United States v. Darden,

184 F. App’x 353 (4th Cir. 2006) (unpublished).                                Darden filed a

motion    to    vacate       pursuant       to    28       U.S.C.A.   § 2255        (West    Supp.

2010),    but       again,    he    did     not       challenge    the       validity       of    his

career offender enhancement.                     The district court dismissed his

motion to vacate, and we denied a certificate of appealability

and   dismissed.             United      States       v.    Darden,     269    F.       App’x     255

(4th Cir. 2008) (unpublished).

               Darden has now filed a petition for a writ of habeas

corpus pursuant to § 2241.                     He argues that the Supreme Court’s

holding    in       Chambers       v.    United       States,     555       U.S.    122    (2009),

rendered       one    of     his   prior       convictions       no     longer      a     crime    of

violence, and accordingly, not a proper predicate for his USSG

§ 2K2.1(a)(2) enhancement.                     The district court concluded that



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his claim was beyond the reach of § 2255’s savings clause and

dismissed his petition.           This appeal followed.

             The   savings    clause       of   § 2255   allows      a   prisoner    to

pursue traditional habeas relief by petition under § 2241 when

it appears that the remedy allowed by § 2255 is inadequate or

ineffective to test the legality of the prisoner’s detention.

We   have   held    that    § 2255   is     inadequate        or   ineffective,     and

§ 2241 may be used to attack a federal conviction when

      (1) at the time of conviction settled law of this
      circuit or the Supreme Court established the legality
      of the conviction; (2) subsequent to the prisoner’s
      direct appeal and first § 2255 motion, the substantive
      law changed such that the conduct of which the
      prisoner was convicted is deemed not to be criminal;
      and (3) the prisoner cannot satisfy the gatekeeping
      provisions of § 2255 because the new rule is not one
      of constitutional law.

In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).                       In addition

to the language in Jones that refers only to the conduct of

conviction, we have also noted that we have not “extended the

reach of the savings clause to those petitioners challenging

only their sentence.”         United States v. Poole, 531 F.3d 263, 267

n.7 (4th Cir. 2008).

             Darden    argues,      though,     that     we    should    extend     the

savings clause to reach his claims in light of Gilbert v. United

States,     609    F.3d    1159    (11th    Cir.),     vacated,      625   F.3d     716

(11th Cir. 2010).         In that case, a panel of the Eleventh Circuit

concluded, under facts similar to these, that a petitioner was

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able to challenge a sentencing enhancement using § 2241 based on

a claim of “actual innocence” of the enhancement.

           We note, however, that during the pendency of this

appeal, the Eleventh Circuit has vacated its holding in Gilbert

and set the matter for en banc rehearing.                     Gilbert v. United

States, 625 F.3d 716 (11th Cir. 2010).                In addition, the claim

that Darden seeks to advance has been rejected by the Third

Circuit, albeit in unpublished authority.                 See United States v.

Kenney, 391 F. App’x 169 (3d Cir. 2010) (unpublished).

           Because   our    cases      have    confined    the    § 2255    savings

clause   to   instances     of    actual      innocence    of     the   underlying

offense of conviction, and because the only case from a sister

circuit holding to the contrary has been vacated, we decline to

extend the reach of § 2255’s savings clause.                      Accordingly we

affirm the judgment of the district court.                      We dispense with

oral   argument   because       the    facts    and   legal      contentions    are

adequately    presented    in    the    materials     before      the   court   and

argument would not aid the decisional process.

                                                                           AFFIRMED




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