     Case: 11-10777     Document: 00511720019         Page: 1     Date Filed: 01/10/2012




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

                                                                            FILED
                                                                         January 10, 2012
                                     No. 11-10777
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TIMOTHY A. DAY,

                                                  Petitioner-Appellant

v.

REBECCA TAMEZ, Warden-Federal Correctional Institution, Fort Worth,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-518


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Timothy A. Day, federal prisoner # 43134-018, appeals the district court’s
dismissal of his 28 U.S.C. § 2241 petition challenging his conviction and sentence
for conspiracy to commit mail fraud and mail fraud in violation of 18 U.S.C.
§§ 371 and 1341. Day contends that his § 2241 petition falls within the savings
clause of 28 U.S.C. § 2255(e).
        We review a district court’s dismissal of a § 2241 petition de novo. Pack
v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). “A section 2241 petition that seeks

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10777    Document: 00511720019      Page: 2    Date Filed: 01/10/2012

                                  No. 11-10777

to challenge the validity of a federal sentence must either be dismissed or
construed as a section 2255 motion.” Id. at 452. “Section 2255 contains a
‘savings clause,’ which acts as a limited exception to this general rule.” Id.;
§ 2255(e).
      Day contends that the district court increased his sentence based on
conduct that was not charged in the indictment nor found beyond a reasonable
doubt such as the actual loss amount and number of victims. Because Day
sought to attack the manner in which his sentence was initially determined, he
had to meet the requirements of the savings clause of § 2255(e) to raise his
claims in a § 2241 petition. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir.
2000). Day had to show that his claims were “(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).
      Day’s argument that the savings clause applies in light of DePierre v.
United States, 131 S. Ct. 2225 (2011), and United States v. O’Brien, 130 S. Ct.
2169 (2010), is raised for the first time on appeal and will not be considered. See
Wilson v. Roy, 643 F.3d 433, 435 n.1 (5th Cir. 2011). Even if we considered this
argument, neither of these cases decriminalized any of the conduct for which he
was convicted. See DePierre, 131 S. Ct. at 2237 (holding that the term “cocaine
base” in 21 U.S.C. § 841(b)(1) refers to cocaine in its chemically basic form, which
includes but is not limited to “crack cocaine”); O’Brien, 130 S. Ct. at 2180
(holding that whether a firearm is a machinegun is an element of the offense in
18 U.S.C. § 924(c)(1)(B)(ii)). Therefore, the savings clause was not applicable.
      The district court’s judgment is AFFIRMED.




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