     Case: 17-40798      Document: 00514572026         Page: 1    Date Filed: 07/26/2018




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

                                    No. 17-40798
                                                                           Fifth Circuit

                                                                         FILED
                                  Summary Calendar                   July 26, 2018
                                                                    Lyle W. Cayce
JORGE LUIS TORRES,                                                       Clerk


                                                 Petitioner-Appellant

v.

RACHEL CHAPA, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:17-CV-165


Before BENAVIDES, OWEN, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Jorge Luis Torres, federal prisoner # 58562-004, is serving a 380-month
sentence for drug and firearm crimes. He appeals the denial of a purported
28 U.S.C. § 2241 petition that the district court deemed to be in substance a
28 U.S.C. § 2255 motion.
       On appeal, Torres contends that his sentence is unlawfully based on a
conviction that can no longer serve as a predicate for career-offender status


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40798     Document: 00514572026     Page: 2   Date Filed: 07/26/2018


                                  No. 17-40798

under U.S.S.G. § 4B1.1.      He also asserts that a mandatory consecutive
sentence for carrying a firearm during a drug-trafficking crime is invalid
because the underlying crime was not a drug-trafficking offense and because
he did not actively employ a firearm. In addition, he argues that the sentencing
court failed to recognize that it could have compensated for his mandatory
consecutive sentence by reducing his other sentences.
      Section 2241 is the procedural vehicle for challenging the manner in
which a sentence is being executed, whereas a § 2255 motion is the vehicle for
collaterally attacking a federal conviction and sentence. Padilla v. United
States, 416 F.3d 424, 426 (5th Cir. 2005). Accordingly, because Torres seeks to
challenge his sentences, his claims would properly be the subject of a § 2255
motion rather than a § 2241 petition. See id.
      Torres may seek relief in a § 2241 petition under the “savings clause” of
§ 2255 if he demonstrates that a § 2255 “motion is inadequate or ineffective to
test the legality of his detention.” § 2255(e); see Reyes-Requena v. United
States, 243 F.3d 893, 903-04 (5th Cir. 2001). However, a prior unsuccessful
§ 2255 motion, or the inability to meet the requirements for filing a second or
successive § 2255 motion, does not render § 2255 inadequate or ineffective.
Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).       Rather, Torres was
required to show that “(1) his claim is based on a retroactively applicable
Supreme Court decision; (2) the Supreme Court decision establishes that he
was ‘actually innocent’ of the charges against him . . . ; and (3) his claim would
have been foreclosed by existing circuit precedent had he raised it” in a earlier
proceeding. Christopher v. Miles, 342 F.3d 378, 382 (5th Cir. 2003).
      Torres fails to make the showing needed to bring his claims within the
savings clause of § 2255(e). The dismissal of his § 2241 petition is AFFIRMED.




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