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Wallace Lester v. M. Lewis ( 2020 )


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  •      Case: 19-40590      Document: 00515398355         Page: 1    Date Filed: 04/28/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-40590                         April 28, 2020
Summary Calendar
Lyle W. Cayce
Clerk
WALLACE THOMAS LESTER,
Petitioner-Appellant
v.
M. K. LEWIS, Warden, Federal Correctional Institution Beaumont Low,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:18-CV-504
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Wallace Thomas Lester, federal prisoner # 50834-056, is serving a 240-
month sentence for being a felon in possession of a firearm, and he now appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition for lack of
jurisdiction. Relying on, inter alia, Johnson v. United States,
    135 S. Ct. 2551 
    (2015), Lester argues that his sentence, which was enhanced under the Armed
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40590     Document: 00515398355      Page: 2   Date Filed: 04/28/2020
No. 19-40590
Career Criminal Act (ACCA), was unconstitutional because he was sentenced
under the ACCA’s residual clause, 18 U.S.C. § 924(e)(2)(B). He also argues
that he was convicted under § 924(c)(3)(B), which the Supreme Court recently
invalidated, finding that it was unconstitutionally vague. See United States v.
Davis,
    139 S. Ct. 2319
    , 2336 (2019).        We review the district court’s legal
determinations de novo and its factual findings for clear error. Padilla v.
United States,
    416 F.3d 424
    , 425 (5th Cir. 2005).
Generally, a federal prisoner must seek relief under 28 U.S.C. § 2255 if
he wishes to challenge his conviction or sentence.
    Id. at 426. 
    However, he may
raise claims in a § 2241 petition where the remedy under § 2255 is inadequate
or ineffective and thus the claims fall within the savings clause of § 2255(e).
    Id. He must 
    establish that his claims (1) are based on a retroactively applicable
Supreme Court decision that establishes that he may have been convicted of a
nonexistent offense and (2) were foreclosed by circuit law at the time of his
trial, direct appeal, or first § 2255 motion. Reyes-Requena v. United States,
    243 F.3d 893
    , 904 (5th Cir. 2001). To meet the first prong, he must show “that
based on a retroactively applicable Supreme Court decision, he was convicted
for conduct that did not constitute a crime.” Jeffers v. Chandler,
    253 F.3d 827
    ,
831 (5th Cir. 2001).
Lester disputes his ACCA-enhanced sentence, not the underlying
conviction. This court has 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, 416 F.3d at 427
    .
Accordingly, the district court’s dismissal of his petition is affirmed.
As for Lester’s claim that he was convicted under now-invalidated
924(c)(3)(B), Lester waived this argument because he raises it for the first time
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Case: 19-40590    Document: 00515398355       Page: 3   Date Filed: 04/28/2020
No. 19-40590
on appeal. Regardless, district court records show that Lester was convicted
under 924(e)(2)(B), thus Davis is inapplicable.
AFFIRMED.
3