BLD-182 & BLD-183 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 15-3555 & 15-3570

___________

JOSEPH RODRIGUEZ;

CHARLES RODRIGUEZ

v.

WARDEN LEWISBURG USP;

UNITED STATES OF AMERICA

Joseph Rodriguez, Appellant in 15-3555

Charles Rodriguez, Appellant in 15-3570

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-14-cv-01121)

District Judge: Honorable Yvette Kane

____________________________________

Submitted for Possible Summary Action 

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

March 17, 2016

Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges

(Opinion filed: March 23, 2016)

_________

OPINION*

_________

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

Petitioners Joseph and Charles Rodriguez, brothers who are currently confined at 

USP-Lewisburg, appeal from an order dismissing their habeas petition under 28 U.S.C. 

§ 2241, and from an order denying their motion under Federal Rule of Civil Procedure 

59(e). For the reasons that follow, we will affirm the judgments of the District Court.

Petitioners robbed banks in July 1997 and May 1998; in September 1998, they 

attempted to rob an armored car but were apprehended. In 1999, a jury in the United 

States District Court for the Middle District of Pennsylvania found the Petitioners guilty 

of numerous offenses, including three counts of aiding and abetting the use of firearms 

during a violent crime. 18 U.S.C. §§ 2 and 924(c)(1). They were sentenced to life 

imprisonment. We affirmed their convictions and sentences on direct appeal. United 

States v. Rodriguez, 54 F. App’x 739, 753 (2002). The petitioners next filed motions 

under 28 U.S.C. § 2255. The United States District Court for the District of New Jersey 

denied those motions, and we denied the Petitioners’ requests for certificates of 

appealability. C.A. Nos. 05-1027 & 05-4149. 

In June 2014, the Petitioners filed a petition under 28 U.S.C. § 2241 in the United 

States District Court for the Middle District of Pennsylvania. They asserted that they 

were entitled to relief based on Alleyne v. United States, 133 S. Ct. 2151 (2013), and 

Rosemond v. United States, 134 S. Ct. 1240 (2014). The District Court dismissed the 

§ 2241 petition for lack of jurisdiction, holding that the Petitioners failed to demonstrate 

that the remedy provided under § 2255 was inadequate or ineffective to test the legality 

of their detention. The Petitioners filed a timely motion for reconsideration under Rule 
3

59(e), which the District Court denied. The Petitioners filed separate notices of appeal, 

which were docketed here as C.A. No. 15-3555 and C.A. No. 15-3570. 

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the 

District Court’s dismissal of the § 2241 petition is plenary, Cradle v. U.S. ex rel. Miner, 

290 F.3d 536, 538 (3d Cir. 2002) (per curiam), and we may affirm the District Court on 

any basis supported by the record. Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 

2011). We review an order denying a motion for reconsideration for abuse of discretion. 

Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 

1999). 

We conclude that the District Court properly dismissed the Petitioners’ § 2241 

petition. Generally, a motion filed under 28 U.S.C. § 2255 in the sentencing court is the 

presumptive means for a federal prisoner to challenge the validity of a conviction or 

sentence. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). In certain 

limited circumstances, a federal prisoner can seek relief under § 2241 in the district of 

confinement if the remedy provided by § 2255 is inadequate or ineffective to test the 

legality of his detention. 28 U.S.C. § 2255(e); see In re Dorsainvil, 119 F.3d 245, 249-51 

(3d Cir. 1997). But we have applied this “safety valve” only in the rare situation where a 

prisoner has had no prior opportunity to challenge his conviction for actions deemed to be 

non-criminal by an intervening change in law. Okereke, 307 F.3d at 120 (citing 

Dorsainvil, 119 F.3d at 251). 
4

We agree with the District Court that the Petitioners’ allegations under Alleyne do 

not fit within the narrow class of circumstances where a § 2255 motion would be 

inadequate or ineffective to challenge his conviction. In Alleyne, the Supreme Court held 

that a fact that triggers a mandatory minimum sentence must be submitted to the jury and 

found beyond a reasonable doubt. 133 S. Ct. at 2155. Here, the Petitioners complained 

that the jury did not find beyond a reasonable doubt that they used machine guns and 

firearms with silencers. See 18 U.S.C. § 924(c)(1)(C) (1998) (requiring a life sentence 

for a “second or subsequent conviction under this subsection” where the “firearm 

involved is a machinegun or a destructive device, or is equipped with a firearm silencer 

or firearm muffler”). As the District Court recognized, Alleyne is essentially an 

extension of Apprendi v. New Jersey, 530 U.S. 466 (2000). See, e.g., United States v. 

Burnett, 773 F.3d 122, 136 (3d Cir. 2014). In Apprendi, the Supreme Court held that 

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime 

beyond the prescribed statutory maximum must be submitted to a jury, and proved 

beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. We have held that “§ 2255 [i]s 

not inadequate or ineffective for [a prisoner] to raise his Apprendi argument[,]” Okereke, 

307 F.3d at 121, and we see no reason to treat claims brought under Alleyne differently. 

Additionally, Alleyne has not been made retroactive to cases on collateral review. See

United States v. Reyes, 755 F.3d 210, 212-13 (3d Cir. 2014).

The Petitioners also claimed that the jury instructions failed to satisfy the 

requirements of Rosemond. In that case, the Supreme Court considered what the 
5

Government must prove to establish that a defendant aided and abetted an offense under 

§ 924(c), which prohibits using or carrying a firearm during and in relation to any crime 

of violence or drug trafficking crime. 134 S. Ct. at 1243. The Court held that for a 

defendant to be found guilty of aiding and abetting under § 924(c), the Government must 

prove that the defendant “actively participated in the underlying . . . crime with advance 

knowledge that a confederate would use or carry a gun during the crime’s commission.” 

Id. at 1243. “Advance knowledge,” the Court stated, means “knowledge at a time the 

accomplice can do something with it—most notably, opt to walk away.” Id. at 1249-50. 

Here, even assuming that the jury instructions violated Rosemond and that 

Rosemond satisfies the safety valve criteria for proceeding under § 2241, habeas relief is 

not warranted because the evidence indicates that the Petitioners had advance knowledge 

that guns would be used during the commission of the crimes. See Neder v. United 

States, 527 U.S. 1, 15 (1999) (concluding that harmless error review applies to 

misdescriptions or omissions in a jury instruction). The July 1997 robbery began when 

the Petitioners, along with at least one other person, entered the bank with rifles and 

handguns. See Rodriguez, 54 F. App’x at 742. At the May 1998 robbery, the Petitioners 

arrived before the bank opened and shot at the door to gain entry. Id. Prior to the 

September 1998 attempted robbery, Joseph Rodriguez made plans to obtain ammunition, 

told a cooperating witness that he and Charles would be armed, and spent two hours 

loading guns and magazines. Id. at 743-44. When they arrived at the rest stop where the 

robbery was to take place, the Petitioners were heavily armed. Id. at 747 (“even if [the 
6

Petitioners] did not know that one of the guns involved was a machine gun, [they] cannot 

deny knowledge that the other was equipped with a silencer, as it was plainly affixed to 

the gun when they brought it to the rest stop.”). Accordingly, we conclude that any error 

in the jury instructions was harmless. See Rosemond, 134 S. Ct. at 1252-53 (remanding 

for lower courts to consider whether “any error in the court’s aiding and abetting 

instruction was harmless”); cf. United States v. Prado, -- F.3d --, 2016 WL 723350, at 

*10 (2d Cir. Feb. 24, 2016) (affirming conviction on direct appeal where, despite 

erroneous instruction under Rosemond, “evidence demonstrate[d] that, after the gun 

appeared, Martinez continued to play an active role in the crime.”).

Finally, we conclude that the District Court did not abuse its discretion in denying 

the Petitioners’ Rule 59(e) motion. In that motion, the Petitioners relied on Burrage v. 

United States, 134 S. Ct. 881 (2014), in support of their argument that the Government 

failed to prove beyond a reasonable doubt that they used machine guns and firearms with 

silencers. In Burrage, the Supreme Court cited Alleyne and Apprendi in holding that a 

penalty enhancement for drug distribution where “death results” is an element that must 

be submitted to the jury and found beyond a reasonable doubt. See Burrage, 134 S. Ct. at 

887. As noted above, however, we have held that Apprendi-based arguments may not be 

brought in a § 2241 petition. Okereke, 307 F.3d at 120. Therefore, we agree that 

Burrage did not provide a basis for granting the motion for reconsideration. 
7

For the foregoing reasons, we conclude that the appeals present no substantial 

question. Therefore, we will summarily affirm the District Court’s judgments.1 See

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

 1 The motion of Jose E. Soto, the Petitioners’ co-defendant, to join them in C.A. No. 15-

3555 is denied. We note that Soto did not participate in the proceedings in the District 

Court.