     Case: 11-40741     Document: 00511781246         Page: 1     Date Filed: 03/08/2012




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

                                                                            FILED
                                                                           March 8, 2012
                                     No. 11-40741
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ISAAC RODRIGUEZ,

                                                  Petitioner-Appellant

v.

JODY UPTON, FCC (M) Warden,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CV-157


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Isaac Rodriguez, federal prisoner # 31752-177, appeals the district court’s
dismissal of his 28 U.S.C. § 2241 petition challenging his 120-month sentence for
being a felon in possession of a firearm. Rodriguez argues that his § 2241
petition falls within the savings clause of 28 U.S.C. 2255(e) because his prior
state convictions for simple possession and delivery of controlled substances did
not qualify for controlled substance offenses for sentencing enhancement



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40741

purposes. He further argues that this court’s decision in Reyes-Requena v.
United States, 243 F.3d 893 (5th Cir. 2001), created an improper precedent.
      We review a district court’s dismissal of a § 2241 petition de novo. Kinder
v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000). “A section 2241 petition that seeks
to challenge the validity of a federal sentence must either be dismissed or
construed as a section 2255 motion.” Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir.
2000). A § 2241 petition that attacks custody resulting from a federally imposed
sentence may be entertained under the savings clause of § 2255 if the petitioner
establishes that the remedy provided under § 2255 is “inadequate or ineffective”
to test the legality of his detention. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir.
2000).
      To demonstrate that the remedy provided under § 2255 is inadequate or
ineffective, Rodriguez must establish that his claim is “(i) . . . based on a
retroactively applicable Supreme Court decision which establishes that
[he] . . . 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
[his] . . . trial, appeal, or first § 2255 motion.” Reyes-Requena, 243 F.3d at 904.
The first “factor requires that a retroactively applicable Supreme Court decision
establish that the petitioner is actually innocent,” meaning that he “may have
been imprisoned for conduct that was not prohibited by law.”              Jeffers v.
Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001) (internal quotation marks and
citation omitted). Rodriguez cannot satisfy this factor by merely claiming that
the district court improperly applied a sentence enhancement because the claim
does not rely on a retroactively applicable Supreme Court decision showing that
he was convicted of a nonexistent offense. See Padilla v. United States, 416 F.3d
424, 427 (5th Cir. 2005); Reyes-Requena, 243 F.3d at 904; Kinder, 222 F.3d at
213-14.
      Furthermore, to the extent that Rodriguez challenges the holding in Reyes-
Requena, one panel of this court cannot overrule another panel absent an

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                                No. 11-40741

intervening en banc decision by this court or a decision by the Supreme Court,
even if the panel disagrees with the prior panel’s holding. In re Entringer
Bakeries, Inc., 548 F.3d 344, 348-49 (5th Cir. 2008). Accordingly, the district
court’s judgment is AFFIRMED.




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