     Case: 17-30067      Document: 00514522582         Page: 1    Date Filed: 06/21/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-30067                                FILED
                                  Summary Calendar                          June 21, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
BENJAMIN TILLMAN,

                                                 Petitioner-Appellant

v.

J.A. BARNHART, Warden, Federal Correctional Institution Pollock,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:16-CV-1304


Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       Benjamin Tillman, federal prisoner # 04060-017, was convicted in the
Northern District of Florida of conspiracy to possess cocaine base with intent
to distribute, in violation of 21 U.S.C. § 846; he was sentenced to 480 months
of imprisonment.       While he was incarcerated in the Western District of
Louisiana, he filed a petition under 28 U.S.C. § 2241. Tillman asserted that
under McFadden v. United States, 135 S. Ct. 2298 (2015), he was convicted of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-30067    Document: 00514522582     Page: 2   Date Filed: 06/21/2018


                                 No. 17-30067

a nonexistent offense because he lacked the requisite mens rea; McFadden
applied retroactively; and, as such, his claim fell under 28 U.S.C. § 2255’s
savings clause. The district court dismissed the case for want of jurisdiction.
      Tillman fails to meet his burden of showing that his claim fell under
§ 2255’s savings clause.    His contention that the Government failed to
introduce the controlled substance at issue and prove the type of substance
does not show he was convicted of a non-existent offense. See McFadden, 135
S. Ct. at 2303-04; see Reyes-Requena v. United States, 243 F.3d 893, 900-04
(5th Cir. 2001). Accordingly, the district court properly dismissed the motion
for lack of jurisdiction. See Reyes-Requena, 243 F.3d at 895 n.3; see also
Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987).
      AFFIRMED.




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