United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-51144
Conference Calendar
GARY DONNELL BLEVINS,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CV-317
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Gary Donnell Blevins, federal prisoner No. 10524-097, seeks
leave to proceed in forma pauperis (“IFP”) to appeal the
dismissal of a 28 U.S.C. § 2241 petition challenging allegedly
erroneous sentencing information. The district court dismissed
Blevins’s petition for lack of jurisdiction and denied IFP,
certifying that the appeal was not taken in good faith.
By moving for leave to proceed IFP, Blevins is challenging the
district court’s certification. See Baugh v. Taylor, 117 F.3d
*
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this opinion should not be published and is not precedent except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. 04-51144
-2-
197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5). However,
Blevins has not demonstrated any nonfrivolous ground for appeal.
Blevins argues that the Bureau of Prisons (“BOP”) has
disregarded its procedural rules in rejecting his administrative
attempts to correct his sentence. He contends that the district
court erred by construing his petition under 28 U.S.C. § 2255
because 28 U.S.C. § 2241 provides the proper jurisdictional basis
for him to challenge the BOP’s alleged failure to correct
incorrect information concerning his sentence. Blevins’s
challenge to the validity of the enhancement information
supporting his sentence implicates United States v. Booker, 125
S. Ct. 738 (2005).
Because Blevins’s petition challenges errors that occurred
at sentencing, his claims should not have been brought in a 28
U.S.C. § 2241 petition. See Padilla v. United States, 416 F.3d
424, 426-27 (5th Cir. 2005). Blevins is not entitled to proceed
under 28 U.S.C. § 2241 based on the savings clause of 28 U.S.C.
§ 2255 because claims based on Booker do not fit within the
savings clause of 28 U.S.C. § 2255. See id.
The IFP motion is DENIED, and the appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2.