[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14056
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-22545-RNS
MARIO MORALES,
Petitioner-Appellant,
versus
WARDEN,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 2, 2017)
Before TJOFLAT, WILLIAM PRYOR, and MARTIN, Circuit Judges.
PER CURIAM:
Mario Morales, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition. After careful
review, we affirm.
In January 2004, Morales pled guilty to racketeering conspiracy and
possession of a firearm in furtherance of a drug trafficking crime. The district
court sentenced him to 294-months imprisonment. At sentencing, the court applied
a five-level enhancement under the United States Sentencing Guidelines for
possessing a gun during the offense.
In his § 2241 petition, Morales claims this enhancement was unlawful.
Specifically, he argues the enhancement was imposed in violation of Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), because the government
possessed—but failed to disclose—a victim’s statement that Morales never
brandished a weapon. Morales raised this same claim in an earlier 28 U.S.C.
§ 2255 motion, which was denied.
A collateral attack on the legality of a federal conviction or sentence
generally may be brought only under 28 U.S.C. § 2255. Sawyer v. Holder, 326
F.3d 1363, 1365 (11th Cir. 2003). However, the “savings clause” of § 2255 allows
a federal prisoner to file a habeas petition pursuant to § 2241 if the prisoner can
show that the remedy under § 2255 is “inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e).
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This Court recently overruled our savings clause precedent and established a
new test for when prisoners may proceed under § 2241 through the savings
clause. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076,
1079–80 (11th Cir. 2017) (en banc). In McCarthan, this Court held that claims
challenging the legality of a sentence generally cannot be brought under the
savings clause. Id. at 1086–90. Instead, the savings clause is limited to claims
challenging the “execution of a sentence,” such as the deprivation of good-time
credits or parole determinations. Id. at 1089, 1092–93. A claim attacking the
legality of a sentence can be brought only in the very “limited circumstance[]” in
which “the sentencing court is unavailable” (for example, because the sentencing
court itself has been dissolved), or where some other “practical consideration[]”
prevented the petitioner from filing a § 2255 motion. Id. at 1093 (quotation
omitted).
Morales’s petition does not satisfy the McCarthan test for proceeding under
the savings clause. He challenges only the legality of his sentence, not the
execution of his sentence. Further, it is clear there were no circumstances that
prevented Morales from bringing the claim he now tries to bring under § 2241 in a
§ 2255 motion, because he did. Therefore, the district court was correct in denying
Morales’s petition.
AFFIRMED.
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