     Case: 12-40960       Document: 00512163034         Page: 1     Date Filed: 03/04/2013




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

                                                                            FILED
                                                                           March 4, 2013
                                     No. 12-40960
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DARIO MORROW,

                                                  Petitioner-Appellant

v.

RIVERA, Warden,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:12-CV-293


Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
       Dario Morrow, federal prisoner # 50383-018, appeals the district court’s
dismissal of his 28 U.S.C. § 2241 petition, challenging his conviction in the
United States District Court for the Middle District of Florida of conspiracy to
distribute and possess with intent to distribute five kilograms or more of cocaine
and possession of a firearm in furtherance of a drug trafficking crime. He
reasserts his claim that the Government breached the plea agreement when it
failed to drop the firearm charge, and he argues that the district court erred in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40960    Document: 00512163034     Page: 2   Date Filed: 03/04/2013

                                 No. 12-40960

holding that this claim was not cognizable under § 2241 and could not be raised
under the “savings clause” of 28 U.S.C. § 2255.
      Because Morrow’s claim that the Government breached the plea
agreement concerns facts that arose at or prior to sentencing, the district court
did not err in determining that it was more properly construed as a § 2255
motion. See Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir.
1990). Morrow may not use § 2241 as a vehicle to challenge his conviction unless
he shows that § 2255 “is inadequate or ineffective to test the legality of his
detention.” See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001). Because Morrow failed to make this showing, the district court did not
err in dismissing his § 2241 petition.
      AFFIRMED.




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