### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 31066 Summary Calendar

HECTOR RODRIGUEZ

- PENA , Plaintiff

–

Appellant ,

v ersus T. G. WERLICH , Defendant

– Appellee

.

Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:14

- CV

- 994

Before REAVLEY, SMITH, and HAYNES, Circuit Judges. PER CURIAM: *
Hector Rodriguez

- Pena , federal prisoner # 07935

- 069 , was convicted , in

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 28, 2015 Lyle W. Cayce Clerk Case: 14-31066 Document: 00513131928 Page: 1 Date Filed: 07/28/2015No. 14

- 31066

2 federal court in Puerto Rico , of variou s offenses, including conspiracy to import, import ation , and possessi on with the intent to distribute controlled sub

stances ; possessing a firearm during the c ommission of a drug

- trafficking offense ; and aiding and abetting an attempt to kill federal agents who were in the line of duty

. The judgment was affirmed. United Sta tes v. Rodriguez

- Pena , Nos. 93

- 2259, 93

- 2260, 93

- 2261, 93

- 2262, 1995 WL 275691, at *1, *11, *19 (1st Cir. May 11, 1995)

. Rodriguez

- Pena was denied relief under 28 U.S.C. § 2255 in 200 3, and in 2009 he was denied authorization to file a successive § 2255 m otion. In 2014, he filed an ostensible 28 U.S.C. § 2241 petition in the United States District Court for the Western District of Louisiana , where he is impris oned. Adopting the report and recommendation of the magistrate judge, t h at court dismissed for want of jurisdiction. Rodriguez

- Pena claims that Rosemond v. United States , 134 S. Ct. 1240 (2014), requires revers al of his conviction of aiding and abetting the possession of a firearm in furtherance of a drug

- trafficking offense. Because he challenges the validity of his conviction, his petition was properly con strued as a § 2255 motion. See Tolliver v. Dobre , 211 F.3d 876, 877

- 78 (5th Cir. 2000).
Even if Rosemond applies retroactively, Rodriguez

- Pena may not pro

ceed with a § 2241 peti tion under the savings clause of § 2255(e) , given that he h as not established that pre

- Rosemond law precluded his claim. In its decision in the direct appeal, the First Circuit made clear that the g overnment had been required to prove that Rodriguez

- Pena had advance knowledge of the firearms used in the drug

- trafficking offense. See Rodriguez

- Pena , 1995 WL 275691, at *1 2 ; see also United States v. DeMasi , 40 F.3d 1306, 1316 (1st Cir. 1994)

. Thus, it “was not error” to determine that § 2241 was unavailabl e. See Jeffers v. Chandler , 253 F.3d 827, 831 (5th Cir. 2001). Case: 14-31066 Document: 00513131928 Page: 2 Date Filed: 07/28/2015No. 14

- 31066

3 Because it was not the sentencing court, “the district court did not have jurisdiction to treat” Rodriguez

- Pena ’s petition as a § 2255 motion. Solsona v. War den, F.C.I. , 821 F.2d 1129, 1132 (5th Cir. 1987)

. T he district court was correct in dismiss ing

. A FFIRMED

. Case: 14-31066 Document: 00513131928 Page: 3 Date Filed: 07/28/2015