Silva v. Berkebile, No. 08-10914 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-10914 Conference Calendar June 16, 2009 Charles R. Fulbruge III Clerk NATIVIDAD SILVA, JR Petitioner-Appellant v. DAN BERKEBILE, Warden Respondent-Appellee Appeal from the United States District Court for the Northern District of Texas USDC No. 3:08-CV-1240 Before SMITH, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM:* In January 1993, Natividad Silva, Jr., now federal prisoner # 23368-077, was convicted by guilty plea for robbery affecting commerce in Counts 1, 2, 3, and 5 and for possession of a firearm during a crime of violence in Counts 4 and 6. He was sentenced to concurrent 97-month terms of imprisonment on Counts 1, 2, 3, and 5; a consecutive 60 month-term of imprisonment on Count 4; and a consecutive 240-month term of imprisonment on Count 6. He appeals from the * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR.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. No. 08-10914 district court s dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction. This court reviews a district court s dismissal on the pleadings of a § 2241 petition de novo. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). In Count 6, Silva and Jesus Silva (hereinafter referred to as Jesus) were charged with knowingly using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c)(1). Silva concedes that the record established that he robbed an armored truck with the use of a firearm and that Jesus provided him with transportation to and from the scene of the crime. Silva argues that, in light of Bailey v. United States, 516 U.S. 137 (1995), Jesus should not have been convicted of using or carrying a firearm in violation of § 924(c)(1). Silva concludes that he could not have been convicted of aiding or abetting Jesus s violation of § 924(c)(1) and that he is therefore actually innocent of Count 6. When a defendant is charged as both a principal and as an aider or abettor, the principal need not be identified and the defendant may be convicted as either a principal or an aider or abettor. United States v. Pearson, 655 F.2d 569, 570-71 (5th Cir. 1981). As Silva failed to show that he was actually innocent of Count 6, he did not meet the savings clause of 28 U.S.C. § 2255(e) by showing that the remedy provided under § 2255 is inadequate or ineffective to test the legality of his detention. See Christopher v. Miles, 342 F.3d 378, 382 (5th Cir. 2003). Silva s appeal is without arguable merit and therefore frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is dismissed. See 5 TH C IR. R. 42.2. Silva is warned that further frivolous filings will result in the imposition of sanctions. APPEAL DISMISSED; SANCTION WARNING ISSUED. 2
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