ROBERTO RIOS-VIZCARRA V. GEORGE WIGEN, No. 14-17234 (9th Cir. 2016)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT OCT 24 2016 MOLLY C. DWYER, CLERK ROBERTO RIOS-VIZCARRA, Petitioner-Appellant, No. 14-17234 U.S. COURT OF APPEALS D.C. No. 1:14-cv-00875-LJO-MJS v. GEORGE WIGEN, Warden, Moshannon Valley Correctional Institution, MEMORANDUM* Respondent-Appellee. Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neil, Chief District Judge, Presiding Submitted October 17, 2016** San Francisco, California Before: KLEINFELD, TASHIMA, and M. SMITH, Circuit Judges. Petitioner Rios-Vizcarra appeals the dismissal of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Rios-Vizcarra claims that a prior state conviction in California should not be construed as a “prior drug felony” * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). for the purposes of 21 U.S.C. § 841(b)(1)(A) after the Supreme Court’s decision in Descamps v. United States, 133 S.Ct. 2276 (2013). The district court held that his motion did not qualify as a petition under 28 U.S.C. § 2241, because it did not claim actual innocence, and dismissed it. We have appellate jurisdiction under 28 U.S.C. § 1291, and affirm. The district court did not err when it concluded that Rios-Vizcarra failed to satisfy the requirement of the § 2255(e) escape hatch. Even if it is possible for a petitioner to “be actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch,” Marrero v. Ives, 682 F.3d 1190, 1193, (9th Cir. 2012), Rios-Vizcarra fails to make a plausible showing of actual innocence. RiosVizcarra does not allege that he was factually innocent of the state conviction, nor was Rios-Vizcarra statutorily ineligible to receive his sentence, either with or without the enhancement. Finally, Rios-Vizcarra’s sentence poses no violation of constitutional rights. Failing to meet any of the possible exceptions to the § 2255(e) escape hatch for noncapital sentencing enhancements outlined in Marrero, 682 F.3d at 1193–95, Rios-Vizcarra cannot bring a § 2241 petition to challenge his sentence. 2 AFFIRMED. 3
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