     Case: 14-30524      Document: 00512789097         Page: 1    Date Filed: 10/01/2014




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

                                                                                  FILED
                                                                              October 1, 2014
                                    No. 14-30524
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk


TERRELL EMIL MICKELS, also known as Terrence Emil Nickson,

                                                 Plaintiff-Appellant

v.

K. ASK-CARLSON; OSCAR JOLIMO PALACIOS; MAURICE SANDFORD;
JOHN T. MOORE; RICK GASTINE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:13-CV-2988


Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM: *
       Terrell Emil Mickels, federal prisoner # 11733-003, appeals the
dismissal of his 28 U.S.C. § 2241 petition for failure to satisfy the savings
clause of 28 U.S.C. § 2255(e). Mickels challenged his 188-month sentence for
possession with intent to distribute crack cocaine. He contended, based on
Alleyne v. United States, 133 S. Ct. 2151 (2013), that his statutory minimum



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30524     Document: 00512789097       Page: 2   Date Filed: 10/01/2014


                                   No. 14-30524

sentence was unconstitutionally increased based on facts not admitted or
proved beyond a reasonable doubt.
      We review a district court’s dismissal of a § 2241 petition de novo. Pack
v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Since Mickels sought to attack the
validity of his sentence, he had to meet the requirements of the savings clause
of § 2255(e) to raise his claim in a § 2241 petition. See § 2255(e). To meet the
requirements of the savings clause of § 2255(e), Mickels had to show that his
claim was “(i) . . . based on a retroactively applicable Supreme Court decision
which establishes that [he] . . . may have been convicted of a nonexistent
offense and (ii) that was foreclosed by circuit law at the time when the claim
should have been raised in [his] . . . trial, appeal, or first § 2255 motion.” Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
      In Alleyne, the Supreme Court held that any fact that increases a
defendant’s mandatory minimum sentence must be submitted to a jury to be
proved beyond a reasonable doubt. 133 S. Ct. at 2163. Since the decision in
Alleyne implicates the validity of a sentence, Alleyne does not establish that
Mickels was convicted of a nonexistent offense. See Wesson v. U.S. Penitentiary
Beaumont, TX, 305 F.3d 343, 348 (5th Cir. 2002). Therefore, the district court
did not err by dismissing Mickels’s § 2241 petition for failure to satisfy the
savings clause of § 2255(e).
      The judgment of the district court is AFFIRMED.




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