     Case: 09-10727     Document: 00511159327          Page: 1    Date Filed: 06/30/2010




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

                                                 FILED
                                                                            June 30, 2010
                                     No. 09-10727
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ROBERT RICH,

                                                   Petitioner-Appellant

v.

REBECCA TAMEZ, Warden, FCI - Ft Worth,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 4:09-CV-172


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        In 1990, Robert Rich, federal prisoner # 19351-077, was convicted of
conducting a continuing criminal enterprise (CCE), conspiring to possess and
possession with intent to distribute amphetamine, and use of a telephone to
facilitate a drug offense. In 2009, Rich filed a 28 U.S.C. § 2241 petition in the
district court. Citing the Supreme Court’s decision in Richardson v. United
States, 526 U.S. 813, 824 (1999), Rich argued that the jury instruction for his
CCE offense impermissibly enlarged the indictment.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10727   Document: 00511159327 Page: 2        Date Filed: 06/30/2010
                                No. 09-10727

      Rich appeals the district court’s dismissal of his petition. He argues that
the district court erred by relying on the savings clause test set forth in Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Our review is de
novo. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
      In Reyes-Requena, 243 F.3d at 900-04, we held that in order to bring a
§ 2241 petition under the savings clause, the petitioner must set forth a claim
(i) that is based on a retroactively applicable Supreme Court decision which
establishes that the petitioner 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 the petitioner’s trial, appeal, or first § 2255 motion. Rich
argues that rather than the test set forth in Reyes-Requena, we should employ
the savings clause test set forth by the Seventh Circuit in In re Davenport, 147
F.3d 605, 611 (7th Cir. 1998).
      Rich has not shown that the facts of his case are not controlled by Reyes-
Requena. Absent an en banc decision by this court or intervening Supreme
Court decision explicitly or implicitly overruling Reyes-Requena, we are bound
by the precedent established in Reyes-Requena. See United States v. Rodriguez-
Jaimes, 481 F.3d 283, 288 (5th Cir. 2007).       We note, however, that Rich’s
reliance on the Seventh Circuit’s Davenport test is flawed because Davenport
also contains an actual innocence requirement. See Reyes-Requena, 243 F.3d at
902-03 & n. 28.
      Rich has not demonstrated that the district court erred in dismissing his
§ 2241 under the reasoning set forth in Jeffers, 253 F.3d at 830. Accordingly, the
judgment of the court is AFFIRMED.




                                        2
