Montgomery v. United States

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2003
Charles R. Fulbruge III
Clerk
No. 03-40423
Conference Calendar
BERNARD VINCENT MONTGOMERY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CV-61
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Bernard Vincent Montgomery, federal prisoner # 53653-146,
appeals the district court’s dismissal of his 28 U.S.C. § 2241petition challenging the validity of his convictions for
methamphetamine manufacture, importation, and distribution. He
asserts that his sentence is invalid in light of Jones v. United
States, 526 U.S. 227 (1999). Because Montgomery is challenging
the method by which his sentence was calculated, rather than the
execution of his sentence, the district court correctly construed
*
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that this opinion should not be published and is not precedent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. 03-40423
-2-
his petition as a 28 U.S.C. § 2255 motion. See Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir.), cert. denied, 534 U.S.
1001 (2001). Montgomery has not established that his Jones claim
satisfies the test for filing a 28 U.S.C. § 2241 petition under
the “savings clause” of 28 U.S.C. § 2255. See Jones, 526 U.S. at251 n.11; see also Wesson v. U.S. Penitentiary Beaumont, Tex.,
305 F.3d 343, 347-48 (5th Cir. 2002), cert. denied, 123 S. Ct.
1374 (2003); In re Tatum, 233 F.3d 857, 859 (5th Cir. 2000). The
judgment of the district court is AFFIRMED.