     Case: 17-41106       Document: 00514815884         Page: 1     Date Filed: 01/30/2019




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

                                                                                   FILED
                                     No. 17-41106                           January 30, 2019
                                   Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
JIMMY LEE SHARBUTT,

                                                  Petitioner-Appellant

v.

N. VASQUEZ, Warden,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:13-CV-514


Before BARKSDALE, ELROD, and HO, Circuit Judges,
PER CURIAM: *
       Jimmy Lee Sharbutt, federal prisoner # 09112-062 and proceeding pro
se, contests the dismissal of his 28 U.S.C. § 2241 petition.                 Sharbutt was
convicted of being a felon in possession of a firearm and ammunition. The
district court concluded he was an armed career criminal and sentenced him,
inter alia, to 262 months’ imprisonment. See 18 U.S.C. §§ 922(g)(1), 924(e).
Subsequently, his 28 U.S.C. § 2255 motion was denied.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-41106

      For his § 2241 motion, Sharbutt contends the court erred in concluding
he failed to meet the requirements of the savings clause of § 2255(e), which
would permit him to proceed under § 2241 (generally reserved for challenges
to the manner in which a sentence is being executed). According to Sharbutt,
Mathis v. United States, 136 S. Ct. 2243 (2016), prohibits the application of the
armed-career-criminal enhancement for convictions of offenses defined more
broadly than the generic offense listed in § 924(e)(2)(B)(ii), such as his prior
conviction of Oklahoma second-degree burglary.            See United States v.
Hamilton, 889 F.3d 688, 699 (10th Cir. 2018).
      The district court’s determination of law in dismissing a § 2241 petition
is reviewed de novo. Garland v. Roy, 615 F.3d 391, 396 (5th Cir. 2010). To
proceed under § 2241, Sharbutt has to meet the requirements of the savings
clause in § 2255(e) by showing his claim was “based on a retroactively
applicable Supreme Court decision which establishes that . . . petitioner may
have been convicted of a nonexistent offense” and “foreclosed by circuit law at
the time when the claim should have been raised in . . . petitioner’s trial,
appeal, or first § 2255 motion”. Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001).
      Because Mathis implicates the validity of a sentence enhancement,
Mathis does not establish Sharbutt was convicted of a nonexistent offense. See
Padilla v. United States, 416 F.3d 424, 425–27 (5th Cir. 2005) (pre-Mathis
action in which petitioner “[did] not attack his conviction and his claims
challenge only the validity of his sentence”). Moreover, Mathis does not apply
retroactively. See Mathis, 136 S. Ct. at 2257; see also In re Lott, 838 F.3d 522,
523 (5th Cir. 2016) (denying authorization to file a successive § 2255 motion
because petitioner “failed to [show] Mathis . . . set forth [a] new rule[ ] of




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                               No. 17-41106

constitutional law that [has] been made retroactive to cases on collateral
review” (citation omitted)).
      AFFIRMED.




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