     Case: 17-10546      Document: 00514347333         Page: 1    Date Filed: 02/14/2018




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

                                    No. 17-10546                               FILED
                                  Summary Calendar                      February 14, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
KRISTOFOR B. KELLEY,

                                                 Petitioner-Appellant

v.

JORGE CASTANEDA, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:17-CV-679


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Kristofor B. Kelley, federal prisoner # 38506-177, was convicted of
conspiracy to manufacture, distribute, and possess with intent to distribute a
controlled substance and money laundering and was sentenced to a total of
180 months of imprisonment. He now appeals the district court’s denial with
prejudice of his 28 U.S.C. § 2241 petition wherein he argued that in light of
Mathis v. United States, 136 S. Ct. 2243 (2016), his prior Texas convictions of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10546

possession with intent to deliver a controlled substance and delivery of a
controlled substance no longer qualified as predicate offenses for the career
offender enhancement under U.S.S.G. § 4B1.1.
      In this court, Kelley contends that the district court erred in determining
that he failed to satisfy the requirements of the savings clause of 28 U.S.C.
§ 2255(e).   He maintains that his career offender enhanced sentence
“constitutes a complete miscarriage of justice, a deprivation of due process, and
is the equivalent of conviction of a non-existent offense.” Kelley also asserts
that the district court erred in denying his § 2241 petition with prejudice “on
the ground that it lacked jurisdiction to consider the same.” Our review is de
novo. Padilla v. United States, 416 F.3d 424, 425 (5th Cir. 2005).
      Because Kelley challenges the legality of his sentence, rather than the
manner in which it is being executed, his claim is properly construed as arising
under § 2255. See id. at 425-26. Nevertheless, under the savings clause of
§ 2255(e), a § 2241 petition that attacks a federal sentence may be considered
if Kelley shows that § 2255 is “inadequate or ineffective to test the legality of
his detention.” § 2255(e). To satisfy § 2255(e)’s saving clause, Kelley must
establish that (1) his claim is “based on a retroactively applicable Supreme
Court decision which establishes that the petitioner may have been convicted
of a nonexistent offense,” and (2) his claim 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).
      As the district court correctly determined, Kelley has failed to make such
a showing. See id. at 904. We have repeatedly held that challenges to the
validity of a sentencing enhancement do not satisfy the savings clause of
§ 2255(e). See, e.g., In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla,



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                                  No. 17-10546

416 F.3d at 426-27; Abdul Ali v. Carvajal, 654 F. App’x 172, 172-73 (5th Cir.
2016); Preston v. Ask-Carlson, 583 F. App’x 462, 463 (5th Cir. 2014). Moreover,
contrary to Kelley’s argument, the record does not reflect that the district court
denied Kelley’s § 2241 petition with prejudice based on a lack of jurisdiction.
      The judgment of the district court is AFFIRMED.




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