     Case: 13-50084       Document: 00512333859         Page: 1     Date Filed: 08/07/2013




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

                                                                            FILED
                                                                           August 7, 2013
                                     No. 13-50084
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOHN M. WYATT,

                                                  Petitioner - Appellant

v.

WARDEN, Federal Bureau of Prisons; DEPARTMENT OF JUSTICE,

                                                  Respondents - Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:12-CV-470


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, John M. Wyatt, federal prisoner
# 04900-051, challenges under 28 U.S.C. § 2241 the 262-month sentence imposed
in 2004 following his conditional guilty-plea conviction for possession, with
intent to distribute, over 100 kilograms of marijuana. (He has previously filed
several other petitions under § 2241.)
       Wyatt contends: his petition is properly brought under § 2241, rather than
28 U.S.C. § 2255, because he challenges the execution of his sentence, rather

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-50084

than its imposition; and the Supreme Court’s decisions in Begay v. United States,
553 U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122 (2009),
establish that he was actually innocent of the career-offender enhancement at
sentencing because his prior conviction of simple escape no longer qualifies as
a violent felony. The district court dismissed his petition, concluding Wyatt’s
claims were not cognizable under 28 U.S.C. § 2241 and he had not satisfied the
savings clause of 28 U.S.C. § 2255(e).
      The district court’s conclusions of law are reviewed de novo; its findings of
fact, for clear error. Padilla v. United States, 416 F.3d 424, 425 (5th Cir. 2005).
      Wyatt first contends the district court erred in dismissing his petition
because he is challenging the execution of his sentence, which is proper under
§ 2241. Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001).
Because he challenges the validity of the sentence imposed by the sentencing
court, and not the manner in which it is being administered, however, Wyatt’s
petition should have been filed under § 2255. See United States v. Gabor, 905
F.2d 76, 77-78 (5th Cir. 1990); cf. Gallegos-Hernandez v. United States, 688 F.3d
190, 194 (5th Cir.) (allowing prisoner to seek § 2241 relief for challenging his
eligibility to participate in a prison drug program, which could result in 12-
month sentence reduction), cert. denied, 133 S. Ct. 561 (2012). (Wyatt’s § 2255
motion was denied. United States v. Wyatt, 574 F.3d 455 (7th Cir. 2009).)
      Wyatt next contends he may pursue his § 2241 petition under § 2255(e)’s
“savings clause” because, inter alia, his sentence was erroneously enhanced by
a nonexistent offense. Section 2255(e) permits petitioners, under § 2241, to
challenge the validity of a sentence only if § 2255 provides an “inadequate
[remedy] or [is] ineffective to test the legality of [petitioner’s] detention”. 28
U.S.C. § 2255(e). Petitioner satisfies § 2255(e) by showing the 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

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                                 No. 13-50084

prisoner’s trial, appeal, or first § 2255 motion”. Reyes Requena, 243 F.3d at 904
(emphasis added). A claim of actual innocence for a career-offender sentencing
enhancement, however, does not establish actual innocence of the crime of
conviction and, thus, does not, pursuant to the § 2255 savings clause, warrant
review under § 2241. Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000); see
also Padilla, 416 F.3d at 426-27 (holding challenge to validity of enhanced
sentence did not fall under § 2255 savings clause).
      AFFIRMED.




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