599 F. App'x 204
5th Cir.
2015

Amlee

United States Court of Appeals, Fifth Circuit

204

under § 2241 if the remedies provided under § 2255 are “inadequate or ineffective to test the legality of his detention.” Accordingly, the district court dismissed the § 2241 petition for lack of jurisdiction, and Amlee now requests leave from this court to proceed in forma pauperis (IFP) on appeal. He also requests a certificate of appealability (COA), but no COA is required to proceed on appeal in a § 2241 proceeding, see Padilla v. United States, 416 F.3d 424, 425 (5th Cir.2005), and the COA motion is therefore DENIED as unnecessary.

To proceed IFP on appeal, Amlee must show that he is a pauper and that he will raise a nonfrivolous issue on appeal. See FED. R. APP. P. 24(a)(5); Carson v. Polley, 689 F.2d 562, 586 (5th Cir.1982). A petitioner seeking to establish that his § 2255 remedy was 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). We review a district court‘s dismissal of a § 2241 petition de novo. Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir.2000).

Amlee concedes that he cannot meet the standard set forth in Reyes-Requena, but he asserts that he is actually innocent of the sentencing enhancements that were applied in his case and that the refusal to allow him to bring his claims under § 2241 would thus result in a miscarriage of justice. Unlike a claim that one has been convicted of a nonexistent offense or that one is actually innocent of the crime of conviction, a claim that one is actually innocent of a sentencing enhancement is not one that may be brought under § 2255‘s savings clause. See Kinder, 222 F.3d at 213-14.

In light of the foregoing, Amlee has identified no nonfrivolous issue for appeal. His IFP motion is DENIED, and the appeal is DISMISSED. See Baugh v. Taylor, 117 F.3d 197, 202 & n. 24 (5th Cir. 1997); Carson, 689 F.2d at 586; 5TH CIR. R. 42.2.

UNITED STATES of America, Plaintiff-Appellee, v. Andres Chavira CORONA, Defendant-Appellant. United States of America, Plaintiff-Appellee v. Andres Chavira Corona, Defendant-Appellant.

Nos. 14-50715, 14-50718

United States Court of Appeals, Fifth Circuit.

April 9, 2015.

205

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney‘s Office, San Antonio, TX, for Plaintiff-Appellee.

Laura G. Greenberg, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender‘s Office, San Antonio, TX, for Defendant-Appellant.

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Following his guilty plea to attempted illegal reentry and false personation in immigration matters, the district court sentenced Andres Chavira Corona (Chavira) to 33 months of imprisonment. The district court also revoked a term of supervised release that had been imposed following a previous illegal reentry conviction and imposed a revocation sentence of 24 months of imprisonment, with 12 months of the sentence to run consecutive to the 33-month sentence that was imposed for the immigration offenses. Although he filed notices of appeal in both cases, Chavira‘s attorney-prepared brief challenges only the revocation sentence. However, to the extent that Chavira intended to appeal the non-revocation sentence, his argument is waived because it is insufficiently briefed. See FED. R. APP. P. 28(a)(9); United States v. Scroggins, 599 F.3d 433, 446 (5th Cir.2010).

Ordinarily, revocation sentences are reviewed under the “plainly unreasonable” standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir.2011). We do not address Chavira‘s argument that this court should not employ the plainly unreasonable standard because Chavira did not preserve his arguments in the district court and the appeal is thus governed by the plain error standard of review. See United States v. Whitelaw, 580 F.3d 256, 260 (5th Cir.2009). To demonstrate plain error, Chavira must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion to correct the error but only if it affects the fairness, integrity, or public reputation of judicial proceedings. Id.

The revocation sentence fell within the advisory range and was consistent with the Sentencing Guidelines’ policy regarding consecutive sentences. See U.S.S.G. § 7B1.3(f), p.s.; § 7B1.4, p.s. The sentence was thus entitled to a presumption of reasonableness. United States v. Candia, 454 F.3d 468, 473 (5th Cir.2006). Chavira had an extensive criminal history, resulting in 20 criminal history points and a criminal history category of VI. His arguments regarding the overstated seriousness of the offense and his personal circumstances amount to a mere disagreement with the district court‘s balance of the 18 U.S.C. § 3553 sentencing factors, and this court will not second-guess the district court‘s balancing of those factors. See United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir.2011). Chavira has not shown that the revocation sentence is plainly erroneous. See Whitelaw, 580 F.3d at 260-61. Accordingly, the judgment of the district court is AFFIRMED.

Notes

*
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.