Case: 13-41302 Document: 00512723096 Page: 1 Date Filed: 08/05/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-41302 FILED
Summary Calendar August 5, 2014
Lyle W. Cayce
Clerk
BYRON JAMES MILLER,
Petitioner-Appellant
v.
C. V. RIVERA, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:13-CV-442
Before JOLLY, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Byron James Miller, federal prisoner # 27095-044, was convicted in the
Eastern District of Missouri of conspiracy with intent to distribute crack
cocaine and possession with intent to distribute cocaine. He was sentenced to
a total of 292 months of imprisonment, which was reduced in 2011 to 240
months of imprisonment. Miller also was convicted in the Central District of
Illinois of possession with intent to distribute heroin and possession of heroin
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-41302 Document: 00512723096 Page: 2 Date Filed: 08/05/2014
No. 13-41302
by a federal inmate, and he was sentenced to a total of 210 months of
imprisonment, to run consecutively to the sentence imposed in the Missouri
case. Miller filed a 28 U.S.C. § 2241 petition, asserting that (1) he was entitled
to proceed under the savings clause of 28 U.S.C. § 2255, because he was
actually innocent of the career offender sentencing enhancement applied in the
Illinois case, and (2) the Bureau of Prisons (BOP) had incorrectly calculated
his aggregated sentence of 450 months. The district court dismissed the
petition, and Miller now appeals that decision. We review the district court’s
fact findings for clear error and issues of law de novo. Jeffers v. Chandler, 253
F.3d 827, 830 (5th Cir. 2001).
Although Miller contends he is actually innocent of his sentence (i.e.,
that imposed by the Illinois district court), a claim of actual innocence of a
career offender enhancement is not a claim of actual innocence of the crime of
conviction and, thus, does not warrant review under § 2241. Kinder v. Purdy,
222 F.3d 209, 213-14 (5th Cir. 2000). Because Miller has not demonstrated
that his claim is based on a retroactively applicable Supreme Court decision
establishing that he was convicted of a nonexistent offense, the district court
did not err in determining that Miller’s claim did not satisfy the savings clause
of § 2255. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001).
Miller next challenges the BOP’s calculation of his 450-month
aggregated sentence following the reduction in his sentence imposed by the
Missouri district court. For the first time, he argues that the BOP’s
recalculation of his projected release date does not fully account for the
52 months by which his Missouri sentence was reduced. We need not
consider this argument because it is raised for the first time on appeal. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Moreover,
2
Case: 13-41302 Document: 00512723096 Page: 3 Date Filed: 08/05/2014
No. 13-41302
even if Miller had preserved the assertion, he has not shown how the
calculation of his sentence and projected release date was in error.
For the foregoing reasons, the district court’s judgment is AFFIRMED.
Miller’s motion for the appointment of counsel is DENIED.
3