DLD-141 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-3097

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RICARDO GUERRERO,

Appellant

v.

WARDEN ALLENWOOD USP

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1:20-cv-00039)

District Judge: Honorable Sylvia H. Rambo

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Submitted on Appellee’s Motion for Summary Affirmance

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

June 20, 2024

Before: JORDAN, PORTER, and PHIPPS, Circuit Judges

(Opinion filed: July 5, 2024)

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OPINION*

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PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Ricardo Guerrero, a federal prisoner proceeding pro se, appeals from an order of 

the United States District Court for the Middle District of Pennsylvania denying his 

petition under 28 U.S.C. § 2241 and his motion for reconsideration of that order. For the 

following reasons, we will summarily vacate the District Court’s orders and remand with 

instructions to dismiss the § 2241 petition for lack of subject matter jurisdiction.

Following a jury trial in the United States District Court for the Southern District 

of Texas, Guerrero was found guilty of conspiracy to possess with intent to distribute 

heroin, methamphetamine, and cocaine, see 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) and 846; 

conspiracy to commit money laundering, see 18 U.S.C. §§ 1956(a)(1) and (h); and being 

a felon in possession of firearms, see 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was 

sentenced to life in prison for the drug conspiracy, 240 months for the money laundering 

conspiracy, and 120 months for being a felon in possession. The United States Court of 

Appeals for the Fifth Circuit affirmed. See United States v. Guerrero, 603 F. App’x 328 

(5th Cir. 2015) (not precedential). Thereafter, Guerrero filed a motion under 28 U.S.C. 

§ 2255 and an application under 28 U.S.C. § 2244 to file a second or successive § 2255 

motion, both of which were unsuccessful.

In January 2020, Guerrero, who at the time was an inmate at USP Allenwood, 

filed a petition under § 2241 in the United States District Court for the Middle District of 

Pennsylvania. He asserted that his § 922(g) conviction should be vacated under Rehaif v. 

United States, 588 U.S. 225, 227 (2019), in which the Supreme Court held that the 

Government must prove not only that the defendant knew that he possessed a firearm but 
3

also that he knew that he was a member of the relevant category of people barred from

possessing firearms. The District Court denied the petition, concluding that although 

Guerrero could proceed under § 2241, he was not entitled to relief because he stipulated 

at trial that he had previously been convicted of a felony that resulted in a prison sentence 

of over one year. Guerrero timely filed a motion for reconsideration pursuant to Federal 

Rule of Civil Procedure 59(e). The District Court denied that motion. Guerrero timely 

appealed. The Government filed a motion for summary affirmance, but later amended 

that motion by arguing that the District Court’s order should be summarily vacated and 

the matter remanded to the District Court with instructions to dismiss the § 2241 petition 

for lack of jurisdiction. 

We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the 

District Court’s legal conclusions and review any factual findings for clear error. Cradle 

v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam). Because Guerrero

filed a timely motion for reconsideration, our review encompasses both the order denying 

the § 2241 petition, as well as the order denying the motion for reconsideration. See Fed. 

R. App. P. 4(a)(4)(A)(iv).

We will not reach the merits of Guerrero’s underlying claim, which seeks to set 

aside his conviction, because we conclude that the claim must be brought in a motion 

pursuant to 28 U.S.C. § 2255. Attacks on the validity of a federal conviction or sentence 

generally must be asserted under § 2255. See Okereke v. United States, 307 F.3d 117, 

120 (3d Cir. 2002). But because Guerrero’s initial § 2255 motion qualifies as a first 
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§ 2255 motion for purposes of 28 U.S.C. § 2244 and 2255(h), see Slack v. McDaniel, 529 

U.S. 473, 485-86 (2000), he cannot file a second or successive § 2255 motion unless he 

obtains permission to do so from the appropriate Court of Appeals. To do so, he must 

rely on either “newly discovered evidence,” § 2255(h)(1), or “a new rule of constitutional 

law, made retroactive to cases on collateral review by the Supreme Court, that was 

previously unavailable,” § 2255(h)(2). Guerrero’s Rehaif claim did not satisfy those 

requirements. See In re Sampson, 954 F.3d 159, 161 (3d Cir. 2020) (per curiam). 

He thus sought to proceed under the “saving clause” contained in § 2255(e), which

permits a federal prisoner to seek relief under § 2241 when a § 2255 motion would be 

“inadequate or ineffective to test the legality of [the petitioner’s] detention.” 28 U.S.C. 

§ 2255(e). But, while this appeal was pending, the Supreme Court held that the saving 

clause “does not permit a prisoner asserting an intervening change in statutory 

interpretation to circumvent [the] restrictions on second or successive § 2255 motions by 

filing a § 2241 petition.” Jones v. Hendrix, 599 U.S. 465, 471 (2023). Indeed, the 

“inability of a prisoner with a statutory claim to satisfy” the requirements for filing a 

second or successive § 2255 motion “does not mean that he can bring his claim in a 

habeas petition under the saving clause. It means that he cannot bring it at all.” Id. at 

480. We recently held that, following Jones, a petitioner cannot proceed with a Rehaif

claim under § 2241. See In re Edwards, 98 F.4th 425, 436 (3d Cir. 2024).

In sum, to the extent that the Government seeks summary affirmance, the request 

is denied. But we treat the Government’s motion for summary affirmance as amended by 
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its request to summarily vacate the District Court’s order. As so amended, we grant the 

Government’s motion and will summarily vacate the District Court’s orders and remand 

with instructions to dismiss the § 2241 petition for lack of subject matter jurisdiction.

1

 

See Voneida v. Johnson, 88 F.4th 233, 239 (3d Cir. 2023).

1 Guerrero’s letter motion to extend the time to file a response to the Clerk’s Order of 

May 9, 2024, is denied as moot, as he filed a response on June 5, 2024, which we have 

considered. His “Motion for Summary Judgment” is denied.