ALD-295                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-1356
                                       ___________

                                  RODERICK BLACK,
                                             Appellant

                                             v.

                              WARDEN FAIRTON FCI
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civil No. 1:16-cv-01553)
                       District Judge: Honorable Noel L. Hillman
                      ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    June 29, 2017
              Before: MCKEE, JORDAN and RESTREPO, Circuit Judges

                               (Opinion filed July 20, 2017)
                                       _________

                                        OPINION*
                                        _________

PER CURIAM

       In relation to his role as the leader of drug ring in Ahoskie, North Carolina, from

November 1991 through January 1994, Roderick Black was convicted by a federal jury


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
of conspiring to possess with intent to distribute and distributing cocaine and crack

cocaine; engaging in a continuing criminal enterprise under 21 U.S.C. § 848; using and

carrying a firearm during and in relation to a drug trafficking crime; possessing crack

with intent to distribute and aiding and abetting; distributing crack and aiding and

abetting; possessing cocaine with intent to distribute and aiding and abetting; and

distributing cocaine. He was sentenced to consecutive terms of life in prison and 60

months. The judgment was affirmed on appeal. United States v. Black, No. 95-5077,

1996 U.S. App. LEXIS 24447, at *2 (4th Cir. Sept. 18, 1996).

       In 2001, Black filed his first motion pursuant to 28 U.S.C. § 2255 to challenge the

judgment. A district court denied the motion as untimely, and a court of appeals declined

to issue him a certificate of appealability. United States v. Black, 19 F. App’x 78, 79 (4th

Cir. 2001) (per curiam). He has since sought relief without success in a petition under 28

U.S.C. § 2241, see Black v. Warden, 253 F. App’x 209, 210 (3d Cir. 2007) (per curiam),

additional § 2255 motions, see, e.g., Black v. United States, No. 2:94-CR-15-BO-9, No.

2:14-CV-35-BO, 2014 U.S. Dist. LEXIS 132929 (E.D.N.C. Sept. 17, 2014), and a motion

under 18 U.S.C. § 3582(c), see Black v. United States, No. 2:94-CR-15-BO-9, No. 2:14-

CV-35-BO, 2014 U.S. Dist. LEXIS 147391 (E.D.N.C. Oct. 15, 2014) (order).

       In 2016, Black returned to the District Court with another petition pursuant to 28

U.S.C. § 2241, claiming “actual innocence” of a sentence in light of Burrage v. United

States, 134 S. Ct. 881 (2014). In that case, the Supreme Court explained, in pertinent

part, that the “death results” sentencing enhancement in 21 U.S.C. § 841(b)(1) “is an
                                             2
element that must be submitted to the jury and found beyond a reasonable doubt.”

Burrage, 134 S. Ct. at 887. (This enhancement increases the mandatory minimum and

maximum sentences when “death or serious bodily injury results from the use of [the

controlled substance in question].” 21 U.S.C. § 841(b)(1)(A)-(C).) According to Black,

his sentence was enhanced in violation of Burrage because the District Judge made a

drug-quantity finding (specifically, Black stated that he was sentenced to a mandatory

minimum of life imprisonment based on a District Judge’s finding that 49.4 kilograms of

cocaine were involved in a violation of 21 U.S.C. § 841).

       The District Court dismissed the petition for lack of jurisdiction after detailing

Black’s earlier efforts to win relief from his criminal judgment and concluding that 28

U.S.C. § 2255 was not an inadequate or ineffective vehicle for raising Black’s Burrage

claim. Black sought reconsideration, which the District Court denied. Black appeals.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).1

We exercise plenary review over the District Court’s order dismissing Black’s habeas

petition, see Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per

curiam), and we review the District Court’s order denying his motion to reconsider for

abuse of discretion, see Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d

237, 246 (3d Cir. 2010). In reviewing each of these orders, we examine the District

Court’s legal conclusions under a de novo standard and the District Court’s factual

1
  Black does not need a certificate of appealability to proceed with this appeal. See
United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc), abrogated on
other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012).
                                             3
findings under a clearly erroneous standard. See Cradle, 290 F.3d at 538 (discussing

review of order dismissing habeas petition); Howard Hess Dental Labs. Inc., 602 F.3d at

246 (discussing review of order denying reconsideration). Upon review, we will

summarily affirm because this appeal does not present a substantial question. See 3d Cir.

L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

       As we have previously explained, “§ 2255 must be used to raise a challenge to the

validity of a [federal prisoner’s] conviction or sentence unless that section is ‘inadequate

or ineffective.’” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); see 28

U.S.C. § 2255(e). The “inadequate or ineffective” exception applies in rare

circumstances only, such as when a federal prisoner had “no prior opportunity to

challenge his conviction for a crime that an intervening change in substantive law could

negate with retroactive application.” Okereke, 307 F.3d at 120 (citing In re Dorsainvil,

119 F.3d 245, 251 (3d Cir. 1997)). A § 2255 motion is not inadequate or ineffective

merely because relief under § 2255 was previously denied or the federal prisoner cannot

meet the gatekeeping requirements for filing a second or successive § 2255 motion.

Cradle, 290 F.3d at 539. “It is the inefficacy of the remedy, not the personal inability to

use it, that is determinative.” Id. at 538.

       We agree with the District Court that this case is not one of the rare instances

where § 2255 would be inadequate or ineffective. The Supreme Court’s decision in

Burrage did not decriminalize the conduct for which Black was convicted. Rather, as

relevant to Black’s case, Burrage merely applied Apprendi v. New Jersey, 530 U.S. 466
                                              4
(2000), and one of Apprendi’s progeny, Alleyne v. United States, 133 S. Ct. 2151 (2013).

See Burrage, 134 S. Ct. at 887.2 We have previously held that a § 2255 motion is not an

inadequate or ineffective vehicle for raising an Apprendi-based argument. See Okereke,

307 F.3d at 120-21. Accordingly, the District Court correctly concluded that Black could

not resort to § 2241 to raise his legal claim, and the District Court did not err in denying

his motion to reconsider.3

       For these reasons, we will affirm the District Court’s judgment.




2
 In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. In
Alleyne, the Supreme Court held that the same rule applies to “facts that increase
mandatory minimum sentences.” 133 S. Ct. at 2163.
3
 Even if the District Court had jurisdiction under 28 U.S.C. § 2241, Black would not be
entitled to relief under Burrage. Black does not challenge a finding of death or serious
bodily injury; he takes issue with a drug-quantity finding.
                                              5
