Alpidio Gonzalez v. Warden, FCI Three Rivers

Case: 18-40364 Document: 00514786288 Page: 1 Date Filed: 01/08/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40364 FILED
Summary Calendar January 8, 2019
Lyle W. Cayce
Clerk
ALPIDIO GONZALEZ,
Petitioner-Appellant
v.
WARDEN, FEDERAL CORRECTIONAL INSTITUTE THREE RIVERS,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:17-CV-113
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Alpidio Gonzalez, federal prisoner # 06089-078, was convicted by a jury
of possession with intent to distribute 100 kilograms or more of marijuana and
was sentenced to 360 months of imprisonment 1 and eight years of supervised
release. He appeals the district court’s dismissal of his 28 U.S.C. § 2241
petition in which he argued that his prior conviction for Texas delivery of
marijuana no longer qualified as a predicate offense under U.S.S.G. § 4B1.1
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1 His sentence was commuted by President Obama to 240 months in December 2016.
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No. 18-40364
and, as a result, he should no longer be considered a career offender. The
district court determined that Gonzalez could not pursue relief under § 2241
because he failed to show that the remedy under 28 U.S.C. § 2255 would be
inadequate or ineffective, as required by the savings clause of § 2255.
We review the dismissal of a § 2241 petition de novo. Christopher v.
Miles, 342 F.3d 378, 381 (5th Cir. 2003). A federal prisoner may attack the
validity of his conviction in a § 2241 petition if he can meet the requirements
of the savings clause of § 2255. Reyes-Requena v. United States, 243 F.3d 893,
900-01 (5th Cir. 2001). The prisoner must show that the remedy under § 2255
would be “inadequate or ineffective to test the legality of his detention.”
§ 2255(e); Reyes-Requena, 243 F.3d at 901. A petitioner seeking to establish
that his § 2255 remedy was inadequate or ineffective must make a claim
“(i) that is based on a retroactively applicable Supreme Court decision which
establishes that the petitioner may have been convicted of a nonexistent
offense and (ii) that 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.”
Reyes-Requena, 243 F.3d at 904.
Relying on Descamps v. United States, 570 U.S. 254 (2013), Mathis v.
United States, 136 S. Ct. 2243 (2016), and United States v. Hinkle, 832 F.3d
569 (5th Cir. 2016), Gonzalez argues that his prior conviction no longer
supports the application of the career offender guideline, § 4B1.1. He contends
that relief under § 2255 is inadequate or ineffective and, as a result, he meets
the requirements of the savings clause.
The district court correctly determined that Gonzalez failed to satisfy the
savings clause. We have repeatedly held that challenges to the validity of a
sentencing enhancement do not satisfy the savings clause of § 2255(e). See In
re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States, 416
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No. 18-40364
F.3d 424, 426-27 (5th Cir. 2005); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th
Cir. 2000). The judgment of the district court is therefore AFFIRMED.
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