                       REVISED September 15, 2016

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                      No. 15-40411
                                                                                Fifth Circuit

                                                                              FILED
                                                                      September 8, 2016
UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

JUAN DELGADO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CV-253


Before WIENER, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
                                            I.
       In 2008, Defendant-Appellant Juan Delgado pleaded guilty to and was
convicted of conspiracy to possess 188 kilograms of marijuana with the intent
to distribute it. At sentencing, the district court determined that Delgado was
a “career offender” under § 4B1.1 of the United States Sentencing Guidelines
(the “Guidelines”) after classifying his previous conviction for escape as a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
                                        No. 15-40411

“crime of violence.” As a career offender, Delgado’s range of imprisonment
under the Guidelines increased from 77 to 96 months to 188 to 235 months.
The district court sentenced him to 188 months in prison. Delgado then
appealed.
      On that direct appeal, Delgado asserted that the district court had erred
in categorizing his prior conviction of escape. 1 He insisted that his conviction,
which occurred because he fled a halfway house, did not qualify as a crime of
violence under the United States Supreme Court’s opinion in Chambers v.
United States. 2 That panel rejected his contention and affirmed.
      Delgado then attacked his sentence on the same grounds under 28 U.S.C.
§ 2255. The district court denied his motion, and he applied for a certificate of
appealability (“COA”). Both the district court and this court denied his request.
      In 2014, Delgado once again attacked his sentence under § 2255. He
again contended that the district court erred in its appraisal of his earlier
conviction. In doing so, he relied on this court’s more recent opinion in United
States v. Jones, 3 which held that “[a]bsconding from a halfway house does not
categorically present a serious potential risk of physical injury to another” and,
as a consequence, is not a crime of violence under the Guidelines. 4 The district
court denied Delgado’s subsequent motion under § 2255 as successive.
      Delgado then moved for relief from that denial under Federal Rule of
Civil Procedure 60(b) and applied for another COA. In considering these, the
district court indicated that, under the new opinion in Jones, it would not have
considered the escape a crime of violence. It nonetheless determined that, as


      1   United States v. Delgado, 320 F. App'x 286 (5th Cir. 2009).
      2   555 U.S. 122 (2009).
      3   752 F.3d 1039 (5th Cir. 2014).
      4   Id. at 1046.

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with Delgado’s successive motion under § 2255, it lacked authority to consider
the motion under Rule 60(b). It then granted Delgado’s application for a COA
as to whether his motion under § 2255 or Rule 60(b) should be considered a
petition under 28 U.S.C. § 2241 on the basis of the “savings clause” of § 2255.
Delgado now appeals.
                                              II.
       Delgado insists that any remedy under § 2255 is ineffective or
inadequate to attack the legality of his detention and that, as a result, the
district court should have construed his motions under Rule 60(b) and § 2255
as petitions under § 2241 pursuant to this court’s recent opinion in United
States v. Cano. 5 The government responds that the district court properly
determined that it lacked authority to consider Delgado’s motions as successive
and that, even so, Cano is distinguishable. 6
       Under the savings clause of § 2255, a federal prisoner may attack the
legality of his detention in a petition under § 2241 if he establishes that the
remedies provided under § 2255 are “inadequate or ineffective to test the
legality of his detention.” 7 For the savings clause to apply, a petition must show
that the claim (1) “is based on a retroactively applicable Supreme Court
decision which establishes that the petitioner may have been convicted of a
nonexistent offense” and (2) “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.” 8 Even if either of Delgado’s motions are considered to be such a


       5   United States v. Cano, No. 14-40839, *1-2 (5th Cir. April 14, 2015) (unpublished).
       6Delgado does not assert—and we do not consider—whether Section 4B1.2(a)(2) of
the Sentencing Guidelines violates his right to due process. See Beckles v. United States,
616 F. App'x 415 (11th Cir. 2015), cert. granted, 136 S.Ct. 2510 (2016).
       7   Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2013).
       8   Id. at 904.

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petition, each fails the above said test because it raises alleged errors regarding
his sentence, not his conviction. 9 The savings clause of § 2255 therefore does
not apply.
       Instead, Delgado is impermissibly using the motions under § 2255 and
Rule 60(b) “as an occasion to relitigate [his] case” and, for that matter, his
direct appeal. 10 As discussed above, the opinion in Delgado’s direct appeal
determined that “[his] escape conviction [wa]s a [crime of violence].” 11 That
opinion, of course, directly conflicts with the subsequent opinion in Jones,
which determined that an identical escape conviction was not such a crime. 12
Notably, the differing opinions were not the product of intervening law; rather,
each panel considered and relied on the same precedents.
       Accordingly, the earlier opinion was not displaced by the later opinion in
Jones. Although the earlier opinion in Delgado’s direct appeal was
unpublished, it is still binding precedent here “under the doctrine of res
judicata, collateral estoppel or law of the case (or similarly to show double
jeopardy, notice, sanctionable conduct, entitlement to attorney’s fees, or the
like).” 13 Stated differently, Jones is entirely irrelevant in this context.
       Although we appreciate Delgado’s frustration at the divergent results in
his direct appeal and in Jones, we are bound by the former. This result will
remain absent an en banc clarification by this court or a ruling on point by the
Supreme Court.


       See Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005); see also In re
       9

Bradford, 660 F.3d 226, 230 (5th Cir. 2011).
       10   See Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 157 (5th Cir. 2004).
       11   Delgado, 320 F. App'x at 287 (emphasis added).
       12   Jones, 752 F.3d at 1046.
       13 5TH CIR. R. 47.5.4 (2016); see Dupuy v. Cain, 201 F.3d 582, 585 (5th Cir. 2000)
(“[A] federal habeas petitioner is required to raise all issues in the first petition; a
subsequent . . . petition raising new issues is subject to dismissal for abuse of writ.”).

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            No. 15-40411

AFFIRMED.




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