     Case: 18-40141      Document: 00514791789         Page: 1    Date Filed: 01/11/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-40141                    United States Court of Appeals

                                  Summary Calendar
                                                                             Fifth Circuit

                                                                           FILED
                                                                    January 11, 2019

CHRISTOPHER MICHAEL PENSON,                                           Lyle W. Cayce
                                                                           Clerk
                                                 Petitioner-Appellant

v.

WARDEN, FEDERAL CORRECTIONAL INSTITUTE THREE RIVERS,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:16-CV-403


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Christopher Michael Penson, federal prisoner # 57967-180, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition in which he challenged
the 120-month sentence imposed after his conviction for possession with intent
to distribute cocaine base. The district court for the Southern District of Texas,
where Penson was incarcerated at the time he filed his § 2241 petition, found
that he did not meet the requirements of the savings clause of 28 U.S.C.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-40141

§ 2255(e). We review the denial of Penson’s petition de novo. Christopher v.
Miles, 342 F.3d 378, 381 (5th Cir. 2003).
      A prisoner may use § 2241 to challenge his conviction only if the remedy
under § 2255 is inadequate or ineffective to contest the legality of his detention.
§ 2255(e). A § 2241 petition is not a substitute for a § 2255 motion, and Penson
must establish the inadequacy or ineffectiveness of a § 2255 motion by meeting
the savings clause of § 2255. See § 2255(e); Jeffers v. Chandler, 253 F.3d 827,
830 (5th Cir. 2001); Reyes-Requena v. United States, 243 F.3d 893, 904 (5th
Cir. 2001). Under that clause, Penson must show that his petition sets forth a
claim based on a retroactively applicable Supreme Court decision that supports
that he may have been convicted of a nonexistent offense and that the claim
was foreclosed when it should have been asserted in his trial, direct appeal, or
original § 2255 motion. Reyes-Requena, 243 F.3d at 904.
      Penson maintains that he was determined to be a career offender under
the Sentencing Guidelines based on predicate convictions that no longer merit
the enhancement. Relying on Mathis v. United States, 136 S. Ct. 2243 (2016),
United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017), and United States v.
Hinkle, 832 F.3d 569 (5th Cir. 2016), he argues that he is actually innocent of
the career-offender enhancement and that its application violates principles of
equal protection and fair sentencing. He suggests that he may raise his instant
claims in a § 2241 petition because he cannot file a successive § 2255 motion.
      Penson contends only that his sentence was illegally enhanced and does
not maintain that he was convicted of a nonexistent crime or that he is actually
innocent of the offense of conviction. Challenges to the validity of a sentencing
enhancement do not satisfy the savings clause of § 2255(e). See In re Bradford,
660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States, 416 F.3d 424, 426-
27 (5th Cir. 2005); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000). He



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                                 No. 18-40141

otherwise has not cited a retroactively applicable Supreme Court decision that
addresses whether he was convicted of conduct that is not a crime. See Padilla,
416 F.3d at 425-26; Reyes-Requena, 243 F.3d at 904. His previous inability to
obtain relief under § 2255 and the likelihood that his subsequently filed § 2255
motions will be treated as successive does not render the remedy under § 2255
inadequate or ineffective. See Jeffers, 253 F.3d at 830; Kinder, 222 F.3d at 213.
      In light of the foregoing, the judgment of the district court is AFFIRMED.
The Government’s motions for summary affirmance or, in the alternative, an
extension of time to brief the merits are DENIED.




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