     Case: 13-10778      Document: 00512495004         Page: 1    Date Filed: 01/09/2014




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


                                    No. 13-10778
                                                                               FILED
                                                                         January 9, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
CHRISTOPHER ALSOP,

                                                 Petitioner - Appellant

v.

RODNEY CHANDLER, Warden,

                                                 Respondent - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-555


Before BARKSDALE, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Proceeding pro se and in forma pauperis on appeal, Christopher Alsop,
federal prisoner # 03078-061, was convicted in 1999 in the Southern District of
Ohio of conspiracy to distribute cocaine base and three counts of distribution
of cocaine base and was sentenced to 360 months in prison. His subsequent
motion under 28 U.S.C. § 2255 failed. Incarcerated at a federal facility in Fort




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-10778

Worth, Texas, he appeals the dismissal, in the Northern District of Texas, of
his petition for habeas relief pursuant to 28 U.S.C. § 2241.
      The Supreme Court held recently that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury”.
Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). Alsop contends his
sentence was unconstitutionally enhanced based on judicial fact-finding
regarding the amount of crack cocaine involved in his offense, which increased
his mandatory minimum sentence.
      The district court’s factual findings are reviewed for clear error; its legal
conclusions, de novo. E.g., Padilla v. United States, 416 F.3d 424, 425 (5th Cir.
2005). The primary means of collaterally attacking a federal conviction and
sentence is provided by 28 U.S.C. § 2255. Pack v. Yusuff, 218 F.3d 448, 451
(5th Cir. 2000). That motion must be filed in the sentencing court. Id. A
federal prisoner also may attack the validity of his conviction through a § 2241
petition, pursuant to § 2255’s “savings clause”, if he can show the remedy under
§ 2255 would be “inadequate or ineffective to test the legality of his detention”.
28 U.S.C. § 2255(e); see, e.g., Padilla, 416 F.3d at 426. Petitioner bears the
burden of showing the remedy under § 2255 would be inadequate or ineffective.
Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001) (citation
omitted). A petitioner who wishes to proceed under the savings clause must
establish 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”. Id. at 904 (emphasis added). “Only the
custodial court has the jurisdiction to determine whether a petitioner’s claims
are properly brought under § 2241 via the savings clause of § 2255.” Padilla,
416 F.3d at 426 (citation omitted).



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                                  No. 13-10778

      Alsop does not claim he is actually innocent of his four-count conviction.
Instead, he claims his sentence was improperly enhanced based on the district
court’s fact-findings, particularly the calculation of the amount of crack cocaine
involved in his offense. That claim goes to the validity of the sentence, not the
conviction, and thus “does not amount to a claim that he was convicted of a
nonexistent offense as required by the Reyes-Requena savings clause test”.
Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 348 (5th Cir. 2002)
(addressing a § 2241 petition based on Apprendi v. New Jersey, 530 U.S. 466
(2000)). Accordingly, Alleyne is not a retroactively applicable Supreme Court
opinion indicating Alsop was convicted of a nonexistent offense.
      AFFIRMED.




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