     Case: 18-31197      Document: 00515130774         Page: 1    Date Filed: 09/24/2019




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

                                                                              FILED
                                    No. 18-31197                      September 24, 2019
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
ROBERT CARRENO, JR.,

                                                 Petitioner-Appellant

v.

CALVIN JOHNSON, USP Pollock,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:18-CV-996


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Robert Carreno, Jr., federal prisoner # 84477-280, appeals the dismissal
of his 28 U.S.C. § 2241 petition in which he contested the 300-month sentence
imposed after his conviction for conspiracy to distribute a controlled substance.
The district court for the Western District of Louisiana, where Carreno was in
prison at the time he filed his § 2241 petition, found that he did not satisfy the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-31197

savings clause of 28 U.S.C. § 2255(e). We review the dismissal of the petition
de novo. Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003).
      A prisoner may use § 2241 to challenge his conviction only if the remedy
under § 2255 is inadequate or ineffective to contest the legality of his detention.
§ 2255(e). A § 2241 petition is not a substitute for a § 2255 motion, and Carreno
must establish the inadequacy or ineffectiveness of a § 2255 motion by meeting
the savings clause of § 2255. See § 2255(e); Jeffers v. Chandler, 253 F.3d 827,
830 (5th Cir. 2001); Reyes-Requena v. United States, 243 F.3d 893, 904 (5th
Cir. 2001). Under that clause, Carreno must show that his petition sets forth
a claim that is based on a retroactively applicable Supreme Court decision that
supports that he may have been convicted of a nonexistent offense and that the
claim was foreclosed when it should have been raised in his trial, direct appeal,
or original § 2255 motion. See Reyes-Requena, 243 F.3d at 904.
      Carreno asserts that he erroneously was found to have at least two prior
felony drug offenses that rendered him eligible for an enhanced sentence under
21 U.S.C. § 841(b). He maintains that the definition of “felony drug offense” is
unconstitutionally vague and inapplicable. Carreno contends that § 2241 relief
is available to him under Mathis v. United States, 136 S. Ct. 2243 (2016), and
Descamps v. United States, 570 U.S. 254 (2013), and he argues that he
otherwise may contest his invalid sentence to avoid a miscarriage of justice.
      However, Carreno does not assert that he was convicted of a nonexistent
offense or is actually innocent. His claim that he was ineligible for an enhanced
sentence does not meet the requirements of the savings clause of § 2255(e). See
Padilla v. United States, 416 F.3d 424, 426-27 (5th Cir. 2005); Wesson v. U.S.
Penitentiary Beaumont, 305 F.3d 343, 348 (5th Cir. 2002). He otherwise has
not cited a retroactively applicable Supreme Court decision that addresses
whether he was convicted of conduct that is not a crime. See Padilla, 416 F.3d



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                                No. 18-31197

at 425-26; Reyes-Requena, 243 F.3d at 904. There is no authority that would
allow him to proceed under § 2241 without satisfying the savings clause.
     Accordingly, the judgment of the district court is AFFIRMED. Carreno’s
motions to consolidate and for the appointment of counsel are DENIED.




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