     Case: 19-40558       Document: 00515459433         Page: 1     Date Filed: 06/19/2020




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

                                                                                      FILED
                                     No. 19-40558                                 June 19, 2020
                                   Summary Calendar
                                                                                 Lyle W. Cayce
                                                                                      Clerk
DANIEL THOMASON SMITH,

                                                  Petitioner - Appellant

v.

WARDEN, FCI BEAUMONT,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:18-CV-581


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Proceeding pro se and in forma pauperis, Daniel Thomason Smith,
federal prisoner # 29163-380, contests the dismissal of his 28 U.S.C. § 2241
petition challenging his convictions and sentences for: conspiracy to commit
health-care fraud, in violation of 18 U.S.C. §§ 1347 and 1349; aiding and
abetting health-care fraud, in violation of 18 U.S.C. §§ 2 and 1347; aiding and
abetting aggravated identity theft, in violation of 18 U.S.C. §§ 2 and 1028; and


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 19-40558     Document: 00515459433      Page: 2   Date Filed: 06/19/2020


                                  No. 19-40558

aiding and abetting making false statements related to a health-care matter,
in violation of 18 U.S.C. §§ 2 and 1035. The district court dismissed the § 2241
petition because Smith’s claims, based on Rosemond v. United States, 572 U.S.
65, 67 (2014) (holding, in prosecution for aiding and abetting violation of 18
U.S.C. § 924(c), Government must prove defendant had “advance knowledge
that a confederate would use or carry a gun during the crime’s commission”),
did not satisfy 28 U.S.C. § 2255(e)’s savings clause, discussed infra. (Smith
also contends his conditions of confinement violate the Eighth Amendment;
however, this contention “will not be considered” because it is made “for the
first time on appeal”. Wilson v. Roy, 643 F.3d 433, 435 n.1 (5th Cir. 2011)
(citation omitted).)
      The dismissal of Smith’s § 2241 petition is reviewed de novo. Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (citation omitted). Section “2241 is
typically used to challenge the manner in which a sentence is executed”. Reyes-
Requena v. United States, 243 F.3d 893, 900–01 (5th Cir. 2001) (citation
omitted). Section “2255, on the other hand, is the primary means under which
a federal prisoner may collaterally attack the legality of his conviction or
sentence”. Id. at 901 (citation omitted).      Under § 2255(e)’s savings clause,
however, petitioner may employ § 2241 to challenge a conviction and sentence
if it “appears that the remedy [under § 2255] is inadequate or ineffective to test
the legality of [petitioner’s] detention”.     28 U.S.C. § 2255(e).     Petitioner
satisfies the savings clause by showing 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 “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”. Id. at 904.




                                        2
    Case: 19-40558    Document: 00515459433     Page: 3   Date Filed: 06/19/2020


                                 No. 19-40558

      Smith fails both prongs. Because Rosemond was decided in 2014 and
Smith’s trial was in 2016, he “has not demonstrated that Rosemond applies
retroactively to [his] case[]”. United States v. Nix, 694 F. App’x 287, 288 (5th
Cir. 2017) (citations omitted). Moreover, because Rosemond was decided in
2014, his contentions were not foreclosed or unavailable at the time of his 2016
trial, and he could have also raised them either on appeal or in a § 2255 motion.
See Reyes-Requena, 243 F.3d at 904. Accordingly, he fails to show the court
erred by dismissing his § 2241 petition.
      AFFIRMED.




                                       3
