* 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that this opinion should not be published and is not precedent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.

FILED

United States Court of Appeals

Fifth Circuit

JUL 19 2002

Charles R. Fulbruge

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-40163

Summary Calendar

 

MARK A. COUSINS,

Petitioner-Appellant,

versus

ERNEST V. CHANDLER, Warden;

UNITED STATES OF AMERICA,

Respondents-Appellees.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:01-CV-898

--------------------

Before JOLLY, HIGGINBOTHAM and STEWART, Circuit Judges.

PER CURIAM:*

Mark A. Cousins, federal inmate #43109-019, appeals the

district court’s dismissal of his 28 U.S.C. § 2241 petition. 

Cousins contends that his petition satisfied the criteria

established in Reyes-Requena v. United States, 243 F.3d 893, 904

(5th Cir. 2001), and he was entitled to proceed under the

“savings clause” of 28 U.S.C. § 2255.
No. 02-40163

-2-

Specifically, Cousins asserts that he was indicted under 18

U.S.C. § 924(c)(1)(A), which is silent regarding enhanced

sentences for second or subsequent firearms offenses and that he

was convicted and sentenced under 28 U.S.C. § 924(c)(1)(C), which

provides enhanced sentences for second or subsequent offenses. 

Cousins argues that the enhanced sentences are elements of the

offenses that were not charged in the indictment and that were

not submitted and proved to the jury.

Cousins has abandoned the issues that he raised in the

district court concerning his 18 U.S.C. § 2113 convictions, the

district court’s jurisdiction, and the jury charge by failing to

assert them in this court. Yohey v. Collins, 985 F.2d 222, 224-

25 (5th Cir. 1993).

We review the dismissal of a 28 U.S.C. § 2241 petition on

the pleadings de novo. Kinder v. Purdy, 222 F.3d 209, 211 (5th

Cir. 2000), cert. denied, 531 U.S. 1132 (2001). The district

court may entertain a 28 U.S.C. § 2241 petition that challenges

custody resulting from a federal sentence if the petitioner

satisfies the requirements of the 28 U.S.C. § 2255 “savings

clause.” Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.),

cert. denied, 122 S. Ct. 476 (2001). To do so, a petitioner must

show first that his claim is based “on a retroactively applicable

Supreme Court decision which establishes that the petitioner may

have been convicted of a nonexistent offense.” Id. (citation and

quotations omitted). The petitioner thus must show actual
No. 02-40163

-3-

innocence, and actual innocence in this sense requires a showing 

that the petitioner may have been imprisoned for conduct that did

not constitute a crime. Id. at 830, 831.

Cousins’ argument is based on the current version of 18

U.S.C. § 924(c)(1), although he was convicted in 1993. The 1993

version of the statute did not contain the designated subsections

upon which Cousins’ argument is based.

The true nature of Cousins’ claim is not actual innocence;

he is challenging the propriety of his sentences. Relief on such

claims cannot be sought by way of a 28 U.S.C. § 2241 petition. 

See Kinder v. Purdy, 222 F.3d 209, 211 (5th Cir. 2000), cert.

denied, 531 U.S. 1132 (2001). Furthermore, although Cousins

relies on Apprendi v. New Jersey, 530 U.S. 466, 488 (2000), as

support for his position, he cannot show an Apprendi violation. 

See United States v. Garcia, 242 F.3d 593, 599 (5th Cir. 2001). 

Cousins’ 20-years sentences for his second and subsequent

firearms conviction were within the statutory minimum. See 18

U.S.C. § 924(c)(1)(C). The judgment of the district court is

AFFIRMED.