*

  After examining the briefs and the record, we have concluded that oral argument is

unnecessary.  Thus, the appeal is submitted on the briefs and the record.  See FED. R. APP. P.

34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted October 30, 2008*

Decided December 22, 2008

Before

      WILLIAM J. BAUER, Circuit Judge

                   JOHN L. COFFEY, Circuit Judge

                              MICHAEL S. KANNE, Circuit Judge

No. 07‐3193

GREGORY LEE McCALL,

Petitioner‐Appellant,

v.

UNITED STATES OF AMERICA, et al.,

Respondents‐Appellees.

Appeal from the United States District

Court for the Southern District of Illinois.

No. 07‐498‐DRH

David R. Herndon,

Chief Judge.

O R D E R

Federal inmate Gregory McCall petitioned for a writ of habeas corpus under 28

U.S.C. § 2241, claiming in part that the district court misapplied U.S.S.G. §§ 5G1.3(b)‐(c), the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 07‐3193 Page 2

sentencing guideline that governs unfulfilled terms of imprisonment.  The court denied his

petition, and we affirm.

After a jury convicted McCall on one count of possessing a firearm as a felon, 18

U.S.C. §§ 922(g)(1), 924(a)(2), he was sentenced in the Western District of Missouri to 120

months’ imprisonment.  His conviction and sentence were affirmed. See United States v.

McCall, 94 Fed. App’x 417 (8th Cir. 2004).  McCall then brought a motion under 28 U.S.C.

§ 2255 in the Western District of Missouri, challenging his sentence.  The district court

denied the motion, and the court of appeals denied his application for a certificate of

appealability.

While serving his sentence, McCall was sentenced in a Kansas state court on pending

charges of identity theft.  He received a 44‐month sentence to run consecutively to his

federal charge (and was credited 891 days for time served in federal prison).

McCall then petitioned the district court under § 2241, arguing among other things

that the court misapplied U.S.S.G. §§ 5G1.3(b)‐(c), and should have reduced his sentence for

time served in pretrial detention, and should have allowed his federal sentence to be served

in state prison.  The court denied the petition, explaining that § 2241 could not provide

McCall with relief because a federal inmate seeking to challenge his conviction or sentence

must normally do so under § 2255, and McCall did not qualify for any of the narrow

exceptions.

On appeal McCall renews his § 2241 argument that the sentencing court misapplied

U.S.S.G. § 5G1.3 at the time of sentencing.  His argument challenges the imposition of his

sentence, which is a contention ordinarily raised only under § 2255, see Kramer v. Olson, 347

F.3d 214, 217 (7th Cir. 2003), whereas challenges to the execution of a sentence are generally

brought under § 2241, see Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998).  Because

McCall attacks the imposition, not the execution, of his sentence, he must demonstrate that

he falls within the “savings clause” provided by § 2255, which permits a prisoner to proceed

under § 2241 if § 2255 was “inadequate or ineffective to test the legality of his detention.”  28

U.S.C. § 2255 ¶ 5; Kramer, 347 F.3d at 217; United States v. Prevatte, 300 F.3d 792, 799 (7th Cir.

2002).  Section 2255 may be inadequate or ineffective if a defendant has been convicted of a

“nonexistent offense.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998).  And absent

extraordinary circumstances a challenge premised on the sentencing guidelines can be

raised only on direct appeal.  See United States v. Wisch, 275 F.3d 620, 625 (7th Cir. 2001);

Allen v. United States, 175 F.3d 560, 563 (7th Cir. 1999).

McCall, having previously filed a direct appeal and a § 2255 motion, is unable to

satisfy this narrow exception.  He does not argue that the charged conduct is no longer a
No. 07‐3193 Page 3

crime or that there is newly discovered evidence.  See Lewis, 329 F.3d at 936.  Nor does he

assert that he is innocent of the charges.  See Kramer, 347 F.3d at 217.  Rather, his challenge,

premised on the district court’s alleged misapplication of the guidelines, is to the imposition

and not the execution of his sentence.

The judgment of the district court is AFFIRMED.