### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-50084 Summary Calendar

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 u nder 28 U.S.C. § 2241 the 2 6 2

- m o nth s entence imposed in 2004 follow ing his conditional guilty-plea c onviction for possession, with intent to distribute, over 1 00 kilograms of marijuana. (He has previously filed several other petitions under § 2241.) Wyatt contends: his petition is properly brought under § 2 2 4 1, r ather than 28 U.S.C. § 2255, b e c ause h e challenges the execution of his sentence, rather U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 7, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-50084 Document: 00512333859 Page: 1 Date Filed: 08/07/2013No. 13-50084

than its imposition; and the S u p r e me C ourt’s decisions i n Begay v. United States , 553 U.S. 1 37 (2008), and Chambers v. United States , 555 U.S. 1 2 2 ( 2009), establish that he was actually innocent of the career-offender enhancement at senten c i n g b e c ause his p rior conviction of simple escape no longer qualifies as
a violent felony. The district court dismissed his petition, concluding Wy a t t ’ s claims were not cognizable u nder 28 U.S.C. § 2241 a nd 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 , 4 16 F.3d 424, 425 (5th Cir. 2005). Wyatt first contends the dis t rict court erred in dismissing his petition because he is challenging the execution of his sentence, whi c h i s proper under § 2241. Reyes-Requena v. U nited States , 243 F.3d 893, 900-01 ( 5 t h C i r . 2001). Because he challenges the validity of the sentence imposed by the sent encing court, and not the manner in which it is being administered, however, Wyatt’s petition s hould 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, 1 94 (5th Cir.) (allowi n g p r i s o n e r to seek § 2241 relief f or challenging his eligibility to p articipate in a prison drug program, which could result in 12- month sentence r eduction), cert. denied , 133 S

. Ct. 561 (2012). (Wyatt’s § 2255 motion was denied. United States v. Wyatt , 574 F.3d 455 (7 thCir. 2009).) Wyatt next c ontends he may p ursue his § 2241 petition under § 2255(e)’s “savings clause” b ecause, inter alia , his sentence was e rroneously e nhanced by

a nonexistent offense. S ection 2255(e) per m i t s p e titioners, under § 2241, to

c h a l l e n g e the validity of a sentence only if § 2255 provides an “inadequate [ r e m e d y] or [is] ineffective to test the l egality of [petitioner’s] detention”. 2 8 U.S.C. § 2255(e). Petitioner s atisfies § 2255(e) by showing the claim: “is based

on a retroactively applicable Supreme C ourt decision w hich establishes that the
pe titi o n e r m ay have been convicted of a nonexistent offense”; and “was foreclosed by circuit law at the time when the claim s h ould h ave been raised in the
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prisoner’s trial, appeal, or first § 2255 motion”. Reyes Requena , 243 F .3d at 904 (emphasis added). A c laim of actual innocence for a career-offender sentencing enhancement, h ow e v e r , does not establish actual innocence of the crime of conviction and, thus, does n ot, pursuant to th e § 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 a t 4 26-27 (holding challenge to v alidity of enhanced sentence did not fall under § 2255 savings clause). AFFIRMED.

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