     Case: 11-11029     Document: 00511830990         Page: 1     Date Filed: 04/23/2012




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

                                                                            FILED
                                                                           April 23, 2012
                                     No. 11-11029
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JULIO CESAR RODRIGUEZ-DUBERNEY,

                                                  Petitioner-Appellant

v.

KERRY DIXON, Warden,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:11-CV-159


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Julio Cesar Rodriguez-Duberney (Duberney), federal prisoner # 66550-079,
appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition, in which
he challenged his 86-month sentence for illegal reentry. Duberney argues that
his § 2241 petition falls within the savings clause of 28 U.S.C. § 2255(e) because
his prior conviction for interstate transportation in aid of racketeering with
intent to promote cocaine and marijuana trafficking did not constitute a drug
trafficking offense warranting a 16-level enhancement under U.S.S.G. § 2L1.2.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-11029    Document: 00511830990      Page: 2   Date Filed: 04/23/2012

                                  No. 11-11029

      We review a district court’s dismissal of a § 2241 petition de novo. Padilla
v. United States, 416 F.3d 424, 425 (5th Cir. 2005). A § 2241 petition raising
errors “that occurr[ed] at trial or sentencing is properly construed [as arising]
under § 2255.” Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). A § 2241
petition that attacks custody resulting from a federally imposed sentence may,
however, be entertained under the savings clause if the petitioner establishes
that the remedy provided under § 2255 is “inadequate or ineffective” to test the
legality of his detention. § 2255(e); Reyes-Requena v. United States, 243 F.3d
893, 901 (5th Cir. 2001).
      To demonstrate that the remedy provided under § 2255 is inadequate or
ineffective, Duberney must establish that his claims are “based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense” and were
“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, 243 F.3d
at 904. The first “factor requires that a retroactively applicable Supreme Court
decision establish that the petitioner is actually innocent,” meaning that he “may
have been imprisoned for conduct that was not prohibited by law.” Jeffers v.
Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001) (internal quotation marks and
citation omitted). Duberney is unable to satisfy this factor by merely claiming
that the district court improperly applied a sentencing enhancement because the
claim does not rely on a retroactively applicable Supreme Court decision showing
that he was convicted of a nonexistent offense. See id.; see also Padilla, 416 F.3d
at 427; Reyes-Requena, 243 F.3d at 904. Consequently, the judgment of the
district court is AFFIRMED.




                                        2
