     Case: 15-30168      Document: 00513188014         Page: 1    Date Filed: 09/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30168
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 10, 2015
DORIAN J. FRANCIS,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                                                 Respondent -Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-2308


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Dorian J. Francis, federal prisoner # 27103-034, is serving a 177-month
sentence for bank robbery and using, carrying, and discharging a firearm
during a crime of violence. Francis filed a 28 U.S.C. § 2241 petition arguing
that he was entitled to resentencing because the indictment failed to notify
him of the Government’s intent to seek an enhancement pursuant to 18 U.S.C.
§ 924(c)(1)(A)(iii). He further argued that his sentence violated the Double


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-30168     Document: 00513188014      Page: 2    Date Filed: 09/10/2015


                                  No. 15-30168

Jeopardy Clause and that he was actually innocent. The district court denied
Francis’s § 2241 petition because he failed to satisfy the requirements of the
savings clause of 28 U.S.C. § 2255(e).
      Section 2255 provides the main vehicle to raise a collateral challenge to
a federal sentence. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Section
2255 relief is hence the appropriate remedy for “error[s] that occurred at or
prior to sentencing.” Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113
(5th Cir. 1990) (internal quotation marks and citation omitted). In contrast,
§ 2241 is properly used to raise a challenge to “the manner in which a sentence
is executed.” Tolliver, 211 F.3d at 877. A petition filed under § 2241 that raises
errors “that occur[red] at trial or sentencing is properly construed under
§ 2255.” Id. at 877-78. Francis is challenging alleged errors that happened at
trial and sentencing. As such, Francis’s claims must be raised in a § 2255
motion. See Cox, 911 F.2d at 1113.
      If a prisoner can demonstrate that the § 2255 remedy would be
“‘inadequate or ineffective to test the legality of [the prisoner’s] detention,’” he
may be permitted to bring a habeas corpus claim pursuant to § 2241 under the
savings clause. See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th
Cir. 2001) (quoting § 2255). To make this showing, Francis 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” and (ii) “that 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.”
Id. at 904.
      Francis has not shown that he is entitled to proceed under § 2241 based
on the savings clause of § 2255(e). See Reyes-Requena, 243 F.3d at 904; Wesson




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                               No. 15-30168

v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002).
Accordingly, the judgment of the district court is AFFIRMED.




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