     Case: 14-30274      Document: 00512826407         Page: 1    Date Filed: 11/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30274
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         November 5, 2014
MARCUS DE ANDRE PRESTON,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner–Appellant,

v.

K. ASK-CARLSON,

                                                 Respondent–Appellee.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:13-CV-3006


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Marcus De Andre Preston, federal prisoner # 43672-037, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition. Relying on Descamps
v. United States, 133 S. Ct. 2276 (2013), Preston argues that the district court
erroneously determined that one of his prior convictions was a crime of violence
for purposes of U.S.S.G. § 4B1.1(a), resulting in a higher advisory sentencing
range under the Sentencing Guidelines.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30274     Document: 00512826407      Page: 2   Date Filed: 11/05/2014


                                  No. 14-30274

      The district court determined that because Preston was raising a claim
of sentencing error rather than a challenge to the manner in which his sentence
was being carried out, his claim was outside the scope of § 2241. The court also
determined that Preston had not met the criteria for proceeding under the
savings clause of 28 U.S.C. § 2255, which allows a federal prisoner to attack
the legality of his conviction or sentence in a § 2241 petition if he can show that
the remedies provided under § 2255 are “inadequate or ineffective to test the
legality of his detention.” See § 2255(e).
      A prisoner seeking to establish that his § 2255 remedy is inadequate or
ineffective must make a claim (i) “based on a retroactively applicable Supreme
Court decision which establishes that the petitioner may have been convicted
of a nonexistent offense” that (ii) “was foreclosed by circuit law at the time
when the claim should have been raised in the petitioner’s trial, appeal, or first
§ 2255 motion.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001). Descamps has no effect on whether the facts of Preston’s case would
support his conviction for the substantive offense; therefore, it is not a
retroactively applicable Supreme Court decision indicating that he was
convicted of a nonexistent offense.      See, e.g., Wesson v. U.S. Penitentiary
Beaumont, Tex., 305 F.3d 343, 348 (5th Cir. 2002) (per curiam). Moreover,
claims relating to sentencing determinations do not fall within the savings
clause and are not cognizable under § 2241, even where the petitioner asserts
a “miscarriage of justice” or actual innocence relating to the alleged sentencing
errors. See, e.g., Torres v. Young, 457 F. App’x 427, 429 (5th Cir. 2012) (per
curiam); Bey v. Tamez, 453 F. App’x 445, 446 (5th Cir. 2011) (per curiam).
Accordingly, the judgment of the district court is AFFIRMED.




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