     Case: 18-30383      Document: 00515253114         Page: 1    Date Filed: 12/31/2019




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

                                    No. 18-30383                              FILED
                                  Summary Calendar                    December 31, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
EARNEST WASHINGTON, JR.,

                                                 Petitioner-Appellant

v.

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

                                                 Respondent-Appellee


                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:17-CV-1089


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Earnest Washington, Jr., federal prisoner # 25993-044, was convicted of
conspiracy to distribute heroin and conspiracy to use interstate commerce
facilities in the commission of murder for hire and was sentenced to life
imprisonment for each offense, to be served concurrently. He appeals the
district court’s denial of his 28 U.S.C. § 2241 petition, challenging his
conviction for conspiracy to commit murder for hire under 18 U.S.C. § 1958(a)


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-30383     Document: 00515253114      Page: 2   Date Filed: 12/31/2019


                                  No. 18-30383

under the savings clause of 28 U.S.C. § 2255(e). Washington maintains that
in view of Burrage v. United States, 571 U.S. 204 (2014), he was potentially
convicted of conduct that § 1958(a) does not make criminal because the jury
did not find beyond a reasonable doubt that but for his actions, the victims’
deaths would not have occurred. Washington has also filed a motion to file a
corrected reply brief, which is granted.
      Washington actually raises two claims: (1) whether there was an error
under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United
States, 570 U.S. 99 (2013), and (2) whether the district court used the incorrect
causation standard to determine whether death resulted from his offense
conduct in view of Burrage.
      Where, as here, the district court dismisses a § 2241 petition on the
pleadings, this court’s review is de novo. See Pack v. Yusuff, 218 F.3d 448, 451
(5th Cir. 2000). A petitioner can attack the validity of his conviction and
sentence in a § 2241 petition only if he can meet the requirements of the
“savings clause” of 28 U.S.C. § 2255(e). Kinder v. Purdy, 222 F.3d 209, 212
(5th Cir. 2000). The petitioner must show that the remedy under § 2255 would
be “inadequate or ineffective to test the legality of his detention.” § 2255(e);
see Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). A
prisoner who wishes to proceed under the savings clause must make a showing
of both actual innocence and retroactivity. Reyes-Requena, 243 F.3d at 903.
One makes this showing by establishing that his claim (1) “is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense” and (2) “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.




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                                  No. 18-30383

Apprendi/Alleyne error
      Under Apprendi, a fact that increases the statutory maximum
punishment must be alleged in the indictment and found by a jury.             See
Apprendi, 530 U.S. at 490. In 2013, the Supreme Court extended Apprendi’s
holding to facts that increase the statutory mandatory minimum sentence.
Alleyne v. United States, 570 U.S. 99, 103 (2013).
      Washington’s trial took place in August 2000, shortly after Apprendi was
decided on June 26, 2000. See Apprendi, 530 U.S. at 466. The statute of
conviction provides for a statutory sentencing range of zero to ten years, but if
death results, the statutory sentencing range is life imprisonment or the death
penalty. See § 1958(a). The record reflects that the jury did not make the
determination of whether death resulted as a result of Washington’s actions.
Therefore, there was an error under Apprendi. See Apprendi, 530 U.S. at 490.
However, Washington has not shown that Apprendi or Alleyne are
retroactively applicable. See Padilla v. United States, 416 F.3d 424, 427 (5th
Cir. 2005); see also Robinson v. United States, 812 F.3d 476, 477 (5th Cir. 2016).
Therefore, Washington has not shown that this claim satisfies the Reyes-
Requena factors. See Reyes-Requena, 243 F.3d at 904.
Burrage error
      In Burrage, the defendant was convicted of distribution of a controlled
substance that resulted in death based on the jury’s finding that the heroin
sold by the defendant was a contributing cause of the victim’s death. Burrage,
571 U.S. at 206-08. The Supreme Court held that the defendant could not be
convicted under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C)
unless the victim’s use of the drug sold by the defendant was the but-for cause
of the death or injury. Id. at 218-19.




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                                No. 18-30383

      Washington has not shown that his Burrage claim satisfies the Reyes-
Requena factors as he has not demonstrated that he may have been convicted
of a nonexistent offense in view of Burrage. See Reyes-Requena, 243 F.3d at
904. There is no indication in the record which standard of causation the
district court used to make its determination that death resulted from the
offense. Therefore, Washington has not shown that there was error under
Burrage. See Burrage, 571 U.S. 215-19. Further, even if there was Burrage
error, the error was harmless as there was no dispute as to the cause of death
of the victims. The evidence established that Washington and a codefendant
shot the victims, and the victims died as a result of the gunshot wounds. See
United States v. Washington, 318 F.3d 845, 852-54 (8th Cir. 2003). Therefore,
Washington has not shown his Burrage claim satisfies the Reyes-Requena
factors. See Reyes-Requena, 243 F.3d at 904.
      AFFIRMED; MOTION TO FILE CORRECTED REPLY BRIEF
GRANTED.




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