     Case: 11-10869     Document: 00511787360         Page: 1     Date Filed: 03/13/2012




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

                                                                            FILED
                                                                          March 13, 2012
                                     No. 11-10869
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CONSTANTINO RODRIGUEZ-MENDIOLA,

                                                  Petitioner-Appellant

v.

KEITH E. HALL, Warden,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 6:10-CV-17


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Constantino Rodriguez-Mendiola, federal prisoner # 30773-044, appeals
the dismissal of his 28 U.S.C. § 2241 petition. In 2004, in the Eastern District
of Missouri, Rodriguez-Mendiola pleaded guilty to conspiracy to possess with
intent to distribute cocaine and was sentenced to 135 months of imprisonment.
He contends that the sentencing court incorrectly calculated his advisory
sentencing range in light of Amendment 709 to the Sentencing Guidelines. See
U.S.S.G. Supp. to App. C, Amend. 709 (2008).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10869     Document: 00511787360     Page: 2    Date Filed: 03/13/2012

                                  No. 11-10869

      We review the district court’s dismissal de novo. See Kinder v. Purdy, 222
F.3d 209, 212 (5th Cir. 2000). Section 2255 of title 28 is the primary mechanism
for collaterally attacking a federal sentence, and “[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, 451 (5th Cir.
2000). However, 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 make the required affirmative showing under the
savings clause, Rodriguez-Mendiola 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 v. United States,
243 F.3d 893, 904 (5th Cir. 2001).
      Rodriguez-Mendiola has failed to make the required showing. That the
guidelines amendment on which he relies may be retroactive, as he argues, is
irrelevant to the analysis. Similarly, Boudmediene v. Bush, 553 U.S. 723 (2008),
on which he relies, did not establish that Rodriguez-Mendiola may have been
convicted of a non-existent offense. He challenges only the calculation of his
sentence and not the validity of his conviction. Thus, his claim does not fall
within the savings clause of § 2255(e), and it is not cognizable in a § 2241
petition. E.g., Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005).
Because a § 2255 motion must be filed with the sentencing court; see Pack, 218
F.3d at 451; the district court properly dismissed Rodriguez-Mendiola’s petition
for lack of jurisdiction.
      AFFIRMED.



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