Robert Bell v. Ralph Hanson, No. 18-40706 (5th Cir. 2019)
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Case: 18-40706 Document: 00514969364 Page: 1 Date Filed: 05/23/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-40706 Summary Calendar FILED May 23, 2019 Lyle W. Cayce Clerk ROBERT L. BELL, Petitioner-Appellant v. WARDEN RALPH HANSON, Respondent-Appellee Appeals from the United States District Court for the Southern District of Texas USDC No. 2:17-CV-162 Before DAVIS, HAYNES, and GRAVES, Circuit Judges. PER CURIAM: * Robert L. Bell, federal prisoner # 24923-077, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition in which he challenged the 240month sentence imposed after his conviction for carjacking. The district court found that he did not meet the requirements of the savings clause of 28 U.S.C. § 2255(e). We review the denial of Bell’s petition de novo. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 18-40706 Document: 00514969364 Page: 2 Date Filed: 05/23/2019 No. 18-40706 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 petition is not a substitute for a § 2255 motion, and Bell 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, Bell must show that his petition sets forth a claim based on a retroactively applicable Supreme 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. Bell 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), Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016), he argues that, as a result of the district court’s careeroffender classification, his criminal history category was erroneously determined to be VI instead of V, resulting in an erroneous guidelines range of 201-262 months instead of 188-235 months. Bell 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. Challenges to the validity of a sentencing 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, 42627 (5th Cir. 2005); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000). He otherwise has not cited a retroactively applicable Supreme Court decision that 2 Case: 18-40706 Document: 00514969364 Page: 3 Date Filed: 05/23/2019 No. 18-40706 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. Bell has failed to brief and has therefore abandoned any challenge to the district court’s finding that he is not entitled to relief under United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016). See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Additionally, we do not review the claims he raises for the first time on appeal. See Yohey, 985 F.2d at 225. In light of the foregoing, the judgment of the district court is AFFIRMED. We CAUTION Bell that frivolous, repetitive, or otherwise abusive filings may invite the imposition of sanctions, including dismissal, monetary sanctions, and restrictions on his ability to file pleadings in this court and any court subject to this court’s jurisdiction. 3
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