     Case: 18-40681      Document: 00514948650         Page: 1    Date Filed: 05/08/2019




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

                                                                                   FILED
                                    No. 18-40681                                May 8, 2019
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
ALBERT SMITH, III,

                                                 Petitioner-Appellant

v.

RACHEL CHAPA, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:17-CV-217


Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Albert Smith, III, federal prisoner # 10498-078, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 habeas petition in which he challenges
the 294-month sentence imposed following his guilty plea conviction for
possession with intent to distribute 50 grams or more of crack cocaine. Smith
argues that the district court erred in finding that he had not demonstrated
that he was entitled to seek relief under the savings clause of 28 U.S.C. § 2255.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40681     Document: 00514948650     Page: 2    Date Filed: 05/08/2019


                                  No. 18-40681

      This court reviews findings of fact for clear error and conclusions of law
de novo. Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). A § 2241
petition cannot be used as a substitute for a § 2255 motion, and Smith must
demonstrate the inadequacy or ineffectiveness of a § 2255 motion by satisfying
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, 901 (5th
Cir. 2001). Under that clause, a petitioner may file a § 2241 petition if he
shows that the petition asserts a claim “based on a retroactively applicable
Supreme Court decision which establishes that [he] may have been convicted
of a nonexistent offense” and that the claim was “foreclosed by circuit law at
the time when [it] should have been raised in [his] trial, appeal, or first § 2255
motion.” Reyes-Requena, 243 F.3d at 904.
      Relying on a retroactive application of Mathis v. United States, 136 S.
Ct. 2243 (2016), United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), and
United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017), Smith contends that
his sentence as a career offender was unauthorized by law and resulted in a
fundamental defect that constitutes a miscarriage of justice. He asserts that
he is serving a sentence that exceeds the “statutory” maximum guideline
sentence and that he can seek relief under § 2241 because the remedy under
§ 2255 is inadequate or ineffective to test the legality of his detention.
      Smith 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).
      Accordingly, the judgment of the district court is AFFIRMED.



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