IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2008
No. 07-51373
Conference Calendar Charles R. Fulbruge III
Clerk
ADAN CHAVEZ
Petitioner-Appellant
v.
UNITED STATES OF AMERICA
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:07-CV-706
Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
Adan Chavez, federal prisoner # 51181-079, appeals from the denial of his
28 U.S.C. § 2241 petition, in which he challenged his sentence following his
convictions for conspiracy to possess with intent to distribute cocaine and
marijuana, possession with intent to distribute cocaine, and possession with
intent to distribute marijuana. The district court determined that Chavez’s
claims would be properly raised in a 28 U.S.C. § 2255 motion and that Chavez
could not proceed under § 2255’s savings 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51373
Chavez asserts that he is “actually innocent” of the sentence he received
because the trial court calculated the drug quantity and imposed a role
enhancement by using a preponderance-of-the-evidence standard, that the court
wrongly denied him a minor-role reduction and imposed the supervisory
enhancement, and that he should have been sentenced to no more than 20 years
in prison based on the relevant quantity of cocaine. He maintains that he was
unable to raise his claims in his initial § 2255 motion because he was denied an
opportunity to respond to the Government’s answer in that proceeding. The
district court did not err in concluding that Chavez’s claims were not properly
raised under § 2241. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000).
To the extent that Chavez’s underlying arguments can be read as arising under
United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530
U.S. 466 (2000), he may not proceed under the savings clause of § 2255. See
Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005); Wesson v. U.S.
Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002).
Chavez also argues that he is entitled to relief under Amendments 706 and
709 of the Sentencing Guidelines, which he asserts were not available to him
earlier. We will not consider Chavez’s claims, raised for the first time before this
court. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
The judgment of the district court is AFFIRMED.
2