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

No. 18

- 40141 Summary Calendar

CHRISTOPHER MICHAEL PENSON , Petitioner

- Appellant

v. WARDEN, FEDERAL CORRECTIONAL INSTITUTE THREE RIVERS , Respondent

- Appellee

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:16

- CV

- 403

Before JOLLY, COSTA, and HO, Circuit Judges. PER CURIAM: * Christopher Michael Penson, federal prisoner # 57967

- 180, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition in which he challenged the 120

- month sentence imposed after his conviction for possession with intent to distribute cocaine ba se
. The district court for the Southern District of Texas, where Penson wa s incarcerated at the time he filed his § 2241 petition , found that he did not meet the requirements of the savings clause of 28 U.S.C.

* 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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 January 11, 2019

Lyle W. Cayce Clerk Case: 18-40141 Document: 00514791789 Page: 1 Date Filed: 01/11/2019No. 18

- 40141

2 § 2255(e). We review the denial of Penson’s p etition de novo. Christopher v. Miles , 342 F.3d 378, 381 (5th Cir. 2003). A prisoner may use § 2241 to challenge his conviction only if the remedy under § 2255 is inadequate or ineffective to contest the legality of his detention. § 2255(e). A § 2241 p etition is not a substitute for a § 2255 motion, and Penson must establish the inadequacy or ineffectiveness of a § 2255 motion by meeting the savings clause of § 2255. See § 2255(e); Jeffers v. Chandler , 253 F.3d 827, 830 (5th Cir. 2001); Reyes

- Requena v . United States , 243 F.3d 893, 904 (5th Cir. 2001). Under that clause, Penson must show that his petition sets forth a claim based on a retroactively applicable Suprem e Court decision that supports that he may have been convicted of a nonexistent offense and that the claim was foreclosed when it should have been asserted in his trial, direct appeal, or original § 2255 motion. Reyes

- Requena , 243 F.3d at 904. Penson maintains that he was determined to be a career offender under the Sentencing Guidelines based on predicate convictions that no longer merit the enhancement. Relying on Mathis v. United States , 136 S. Ct. 2243 (2016), United States v. Tanksley , 848 F.3d 347 (5th Cir. 2017), and United States v. Hinkle , 832 F.3d 569 (5th Cir. 2016), he argues that he is actually innocent of the career

- offender enhancement and that its application violates principles of equal protection and fair sentencing. He suggests that he may raise his instant claims in a § 2241 petition b ecause he cannot file a successive § 2255 motion. Penson contends only that his sentence was illegally enhanced and does not maintain that he was convicted of a nonexistent crime or that he is actually innocent of the offense of conviction . C hallenges to the validity of a se ntencing enhancement do not satisfy the savings clause of § 2255(e). See In re Bradford , 660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States , 416 F.3d 424, 426

- 27 (5th Cir. 2005); Kinder v. Purdy , 222 F .3d 209, 213

- 14 (5th Cir. 2000). He Case: 18-40141 Document: 00514791789 Page: 2 Date Filed: 01/11/2019No. 18

- 40141

3 otherwis e has not cited a retroactively ap plicable Supreme Court decision that addresses whether he was convicted of conduct that is not a crime. See Padilla , 416 F.3d at 425

- 26; Reyes

- Requena , 243 F.3d at 904. His previous inability to obtain relief under § 225 5 and the likelihood that his subsequently filed § 2255 motions will be treated as successive does not render the remedy under § 2255 inadequate or ineffective. See Jeffers , 253 F.3d at 830; Kinder , 222 F.3d at 213. In light of the foregoing , the judgment of the district court is AFFIRMED. The Government’s motions for summary affirmance or, in the alternative, an extension of time to brief the merits are DENIED. Case: 18-40141 Document: 00514791789 Page: 3 Date Filed: 01/11/2019