United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40372
Conference Calendar
BERNARD VINCENT MONTGOMERY,
Petitioner-Appellant,
versus
UNITED STATES SENTENCING COMMISSION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CV-2-MAC-WCR
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Bernard Vincent Montgomery, federal inmate #53653-146,
appeals the district court’s dismissal of his 28 U.S.C. § 2241
petition. Montgomery asserts that his 28 U.S.C. § 2241 petition
challenged the manner in which his sentence was being executed
and that the district court erred by construing the petition
under 28 U.S.C. § 2255. He contends that the application of the
Sentencing Guidelines in the determination of his sentence
constituted a violation of the Ex Post Facto Clause.
*
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this opinion should not be published and is not precedent except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.
No. 04-40372
-2-
Section 2255, 28 U.S.C., is used to collaterally attack a
federal conviction and sentence based on errors that occurred at
trial or sentencing. Jeffers v. Chandler, 253 F.3d 827, 830 (5th
Cir. 2001). Section 2241, 28 U.S.C., is used generally to
challenge the manner in which a sentence is executed. Jeffers,
253 F.3d at 830. Montgomery’s 28 U.S.C. § 2241 petition
challenged the use of the Sentencing Guidelines, an alleged error
that occurred at sentencing, and was construed properly under 28
U.S.C. § 2255. See Jeffers, 253 F.3d at 830.
The district court did not err in concluding that
Montgomery’s petition did not meet the requirements of the 28
U.S.C. § 2255 savings clause. See Jeffers, 253 F.3d at 830-31.
Montgomery has not shown that his claims were “‘based on a
retroactively applicable Supreme Court decision which establishes
that [he] may have been convicted of a nonexistent offense.’”
Id. at 830 (citation omitted). Accordingly, the judgment of the
district court is AFFIRMED.