     Case: 15-30334      Document: 00513575448         Page: 1    Date Filed: 06/30/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-30334                                 FILED
                                  Summary Calendar                           June 30, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
KAMALUDEEN A. GIWA, also known as Kamaluden Giwa,

                                                 Petitioner-Appellant

v.

T.G. WERLICH, Warden, Federal Correctional Institution Pollock

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:14-CV-2827


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM: *
       Kamaludeen A. Giwa, federal prisoner # 05322-122, pleaded guilty in the
United States District Court for the District of Nevada to 14 counts alleging
various fraud-related offenses.           He was sentenced to 150 months of
imprisonment. He appeals the district court’s dismissal of his 28 U.S.C. § 2241
petition, in which he challenged his classification by the Bureau of Prisons.
That classification, he argued, was based on an incorrect criminal history score


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-30334     Document: 00513575448     Page: 2    Date Filed: 06/30/2016


                                  No. 15-30334

in his presentence investigation report (PSR). He also claims, on appeal, that
that the district court did not address his request for relief under Federal Rule
of Criminal Procedure 36.
      This court reviews a district court’s dismissal of a § 2241 petition de novo.
Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Despite Giwa’s attempt to
reframe his argument as one directed at the execution of his current sentence,
his challenge to the PSR’s criminal history calculation is clearly directed at an
error that allegedly occurred at sentencing. Ordinarily, a challenge to errors
occurring at trial or sentencing must be brought in a 28 U.S.C. § 2255 motion.
Id. Section 2255(e) permits a federal prisoner to challenge the legality of his
conviction or sentence in a § 2241 petition only when the remedy in § 2255 “is
inadequate or ineffective to test the legality of his detention.”       28 U.S.C.
§ 2255(e). To meet the requirements of the savings clause of § 2255(e), Giwa
had to show that his claim was (i) “based on a retroactively applicable Supreme
Court decision which establishes that [he] may have been convicted of a
nonexistent offense” and was (ii) “foreclosed by circuit law at the time when
the claim should have been raised in [his] trial, appeal, or first § 2255 motion.”
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
      Giwa has not made the required showing. Giwa’s claim fails the first
prong of the Reyes-Requena test because he did not argue in the district court,
nor does he argue here, that his current federal conviction was for a
nonexistent offense.    See 243 F.3d at 903-04.       Giwa does not otherwise
challenge the district court’s determination that he failed to make the showing
necessary to proceed under the savings clause. See id. at 904. Accordingly, the
district court properly dismissed Giwa’s § 2241 petition for lack of jurisdiction.
Also, Giwa’s complaint that the district court erred by not holding an




                                        2
    Case: 15-30334    Document: 00513575448    Page: 3   Date Filed: 06/30/2016


                                No. 15-30334

evidentiary hearing is without merit, as no hearing was required here. See
Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989).
      Although the district court did not explicitly address Giwa’s purported
Rule 36 motion, Giwa’s claim is nevertheless unavailing. The changes that
Giwa requested be made in his PSR did not involve mechanically correcting a
clerical error or an error arising from an oversight or omission. Rather, Giwa
asked the district court to make a substantive change to the calculation of his
criminal history score in the PSR, which is not something that was the result
of clerical mistake or oversight. See United States v. Buendia-Rangel, 553 F.3d
378, 379 (5th Cir. 2008).
      AFFIRMED.




                                      3
