     Case: 18-41054      Document: 00515079349        Page: 1     Date Filed: 08/16/2019




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

                                                                               FILED
                                   No. 18-41054                          August 16, 2019
                                 Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,
                                                Plaintiff−Appellee,
versus


HILARIO MERLAN SOLIS, Also Known as Cocho,
                                                Defendant−Appellant.



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                                No. 4:98-CR-47-5




Before DAVIS, SMITH, and DUNCAN, Circuit Judges.
PER CURIAM: *

      Hilario Solis, federal prisoner #07099-078, through counsel, appeals the
order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2).
Solis was convicted in 1999 of conspiracy to distribute heroin and distribution
of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846, for which he was sen-
tenced to 400 months of imprisonment. Solis moved for a reduction of sentence


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 18-41054    Document: 00515079349     Page: 2   Date Filed: 08/16/2019


                                 No. 18-41054

in light of Amendment 782 of the Sentencing Guidelines. Although he also
asserted that a reduction was warranted because the drug quantity was not
charged in the indictment or submitted to the jury and that he was sentenced
in violation of the Ex Post Facto Clause, those issues have not been raised on
appeal and are therefore abandoned. See United States v. Scroggins, 599 F.3d
433, 446 (5th Cir. 2010).

      Solis concedes that he was not entitled to a reduction under that amend-
ment because his base offense level was not based on drug quantity, and he
was sentenced under the enhanced penalty provision of § 841(b)(1). He con-
tends, however, that the district court erred by failing to construe his pro se
§ 3582 motion as a petition for habeas corpus relief under 28 U.S.C. § 2241
because it satisfies the requirements of the savings clause of 28 U.S.C.
§ 2255(e) based on United States v. Burrage, 571 U.S. 204, 218−19 (2014), and
Santillana v. Upton, 846 F.3d 779, 783−84 (5th Cir. 2017).

      Because Amendment 782 did “not have the effect of lowering [Solis’s]
applicable guideline range,” U.S.S.G. § 1B1.10(a)(2)(B), the district court did
not abuse its discretion by denying the § 3582(c)(2) motion, see United States
v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). Accordingly, we affirm the judg-
ment on that basis.

      Further, given that a § 2241 petition “must be filed in the same district
where the prisoner is incarcerated,” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.
2000), we do not address whether Solis’s pleading satisfies the savings clause
of § 2255(e), such that his sentencing challenge can be raised in a § 2241
petition, see Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001),
nor do we express any opinion regarding the merits of such a § 2241 petition.

      AFFIRMED.



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