Marcus Preston v. K. Ask-Carlson

Filing

UNPUBLISHED OPINION FILED. [14-30274 Affirmed ] Judge: ECP , Judge: PRO , Judge: JEG Mandate pull date is 12/29/2014 [14-30274]

Case: 14-30274

Document: 00512826407

Page: 1

Date Filed: 11/05/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30274
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 5, 2014

MARCUS DE ANDRE PRESTON,

Petitioner–Appellant,

Lyle W. Cayce
Clerk

v.
K. ASK-CARLSON,
Respondent–Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:13-CV-3006
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Marcus De Andre Preston, federal prisoner # 43672-037, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition. Relying on Descamps
v. United States, 133 S. Ct. 2276 (2013), Preston argues that the district court
erroneously determined that one of his prior convictions was a crime of violence
for purposes of U.S.S.G. § 4B1.1(a), resulting in a higher advisory sentencing
range under the Sentencing Guidelines.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30274

Document: 00512826407

Page: 2

Date Filed: 11/05/2014

No. 14-30274
The district court determined that because Preston was raising a claim
of sentencing error rather than a challenge to the manner in which his sentence
was being carried out, his claim was outside the scope of § 2241. The court also
determined that Preston had not met the criteria for proceeding under the
savings clause of 28 U.S.C. § 2255, which allows a federal prisoner to attack
the legality of his conviction or sentence in a § 2241 petition if he can show that
the remedies provided under § 2255 are “inadequate or ineffective to test the
legality of his detention.” See § 2255(e).
A prisoner seeking to establish that his § 2255 remedy is inadequate or
ineffective must make a claim (i) “based on a retroactively applicable Supreme
Court decision which establishes that the petitioner may have been convicted
of a nonexistent offense” that (ii) “was foreclosed by circuit law at the time
when the claim should have been raised in the petitioner’s trial, appeal, or first
§ 2255 motion.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001). Descamps has no effect on whether the facts of Preston’s case would
support his conviction for the substantive offense; therefore, it is not a
retroactively applicable Supreme Court decision indicating that he was
convicted of a nonexistent offense.

See, e.g., Wesson v. U.S. Penitentiary

Beaumont, Tex., 305 F.3d 343, 348 (5th Cir. 2002) (per curiam). Moreover,
claims relating to sentencing determinations do not fall within the savings
clause and are not cognizable under § 2241, even where the petitioner asserts
a “miscarriage of justice” or actual innocence relating to the alleged sentencing
errors. See, e.g., Torres v. Young, 457 F. App’x 427, 429 (5th Cir. 2012) (per
curiam); Bey v. Tamez, 453 F. App’x 445, 446 (5th Cir. 2011) (per curiam).
Accordingly, the judgment of the district court is AFFIRMED.

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