                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            SEP 22 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 13-36023

              Plaintiff - Appellee,              D.C. Nos. 2:13-cv-00024-DWM
                                                           2:03-cr-00028-DWM-1
 v.

JOHN MORGAN MEEKS,                               MEMORANDUM*

              Defendant - Appellant.


                  Appeal from the United States District Court
                          for the District of Montana
                Donald W. Molloy, Senior District Judge, Presiding

                      Argued and Submitted August 31, 2015
                               Seattle, Washington

Before: GOODWIN, GOULD, and IKUTA, Circuit Judges.

      Petitioner John Meeks appeals the dismissal of his motion to vacate, set

aside, or correct his sentence under 28 U.S.C. § 2255. The district court held that

his motion did not qualify as a petition under 28 U.S.C. § 2241, and dismissed it as



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
an unauthorized second or successive § 2255 motion. We have appellate

jurisdiction under 28 U.S.C. § 1291.

      The district court had jurisdiction to determine “the threshold question

whether [Meeks’s] petition was properly brought under § 2241 or whether the

filing should instead be construed as a § 2255 motion.” Muth v. Fondren, 676 F.3d

815, 818 (9th Cir. 2012); see also Hernandez v. Campbell, 204 F.3d 861, 865–66

(9th Cir. 2000). We may consider the district court’s determination that a § 2241

petition is not available even though the district court is not the custodial court.

See Muth, 676 F.3d at 819.

      The district court did not err when it concluded that Meeks failed to satisfy

the requirement of the § 2255(e) escape hatch because Meeks has not plausibly

shown that he was actually innocent of the career offender sentencing enhancement

under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Even if it is possible

for a petitioner to “be actually innocent of a noncapital sentence for the purpose of

qualifying for the escape hatch,” Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir.

2012), Meeks has not made any showing that he is statutorily ineligible (and

therefore actually innocent) of his sentence in light of Descamps v. United States,

133 S. Ct. 2276 (2013).

PETITION DISMISSED.
