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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13488
Non-Argument Calendar
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D.C. Docket No. 5:10-cv-00453-WTH-TBS
HENRY LEE WHITE,
Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN - LOW,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 17, 2013)
Before CARNES, HULL, and JORDAN, Circuit Judges.
PER CURIAM:
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Henry White, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C.
§ 2241. White contends that his sentences for one count of possession with intent
to distribute cocaine base and one count of using and carrying a firearm during a
drug trafficking crime were improperly imposed and that he can raise those claims
under the savings clause.
I.
White was indicted in 1998 on one count each of: (1) conspiracy to possess
with intent to distribute cocaine base, in violation of 21 U.S.C. § 846; (2)
possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841;
and (3) using and carrying a firearm during a drug trafficking crime, in violation of
18 U.S.C. § 924(c). The indictment did not specify the quantity of cocaine base
involved in the charged offenses. A jury found White guilty of counts 2 and 3.
The sentencing judge found that White was responsible for 50.9 grams of cocaine
base and sentenced him to 360 months imprisonment on count 2 and a consecutive
term of 60 months imprisonment on count 3. White’s sentence on count 2 was
later reduced to 280 months imprisonment because of his substantial assistance to
the government.
In 1999 White filed a motion to vacate his sentence under 28 U.S.C. § 2255,
raising a claim of ineffective assistance of counsel because his counsel did not file
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an appeal as he had asked. That motion was granted and White was allowed to file
an appeal of his convictions and sentence, but that appeal was ultimately dismissed
as untimely. Then in December 2005 White filed a second § 2255 motion
asserting that his sentence was imposed in violation of his Fifth and Sixth
Amendment rights because the judge, not the jury, found that he was responsible
for 50.9 grams of cocaine base. That motion was denied as untimely.
In 2010 White filed this habeas petition under 28 U.S.C. § 2241, contending
that: (1) he is actually innocent of his sentence of 280 months imprisonment for
possession of cocaine base with intent to distribute because the judge, not the jury,
found that he was responsible for 50.9 grams, and absent that factual finding, the
statutory maximum term of imprisonment was 20 years; (2) the sentencing court
improperly applied the career offender enhancement because he had never been
sentenced to more than one year imprisonment for a drug offense; (3) the
sentencing court erred in calculating the applicable guidelines range because it
incorrectly computed his criminal history points; and (4) he is entitled to a sentence
reduction under the Fair Sentencing Act of 2010. The district court dismissed the
petition as an unauthorized second or successive petition and found that White
could not bring his sentencing claims in a § 2241 petition under the savings clause.
This is White’s appeal.
II.
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We review de novo the availability of habeas relief under § 2241. Darby v.
Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005). A collateral attack on a federal
sentence typically must be brought under 28 U.S.C. § 2255, Sawyer v. Holder, 326
F.3d 1363, 1365 (11th Cir. 2000), which generally bars second or successive
motions without prior authorization, 28 U.S.C. § 2255(h). Notwithstanding that
bar, the savings clause allows a prisoner to file a habeas petition under § 2241 if §
2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. §
2255(e). The savings clause, however, does not allow a federal prisoner to
challenge his sentence in a § 2241 petition, at least when the sentence does not
exceed the statutory maximum that would have applied but for the claimed error.
Gilbert v. United States, 640 F.3d 1293, 1295 (11th Cir. 2011) (en banc).
White contends that the statutory maximum that applied to his conviction for
possession of cocaine base with intent to distribute is 20 years and that he was
sentenced to a longer term of imprisonment only because the sentencing judge
found that he was responsible for 50.9 grams. That is wrong. At the time he was
sentenced, White had previously been convicted of four felony drug offenses, each
of which carried a maximum penalty of 30 years imprisonment. 1 Because White
had four prior felony drug convictions, the statutory maximum term of
1
White contends that he had not previously been convicted of a “felony drug offense”
because he had never served more than one year in prison for a drug offense. We reject that
contention because a “felony drug offense” is defined as a drug offense “that is punishable by
imprisonment for more than one year,” regardless of how much time is actually served. 21
U.S.C. § 802(44) (emphasis added).
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imprisonment for possession of cocaine base with intent to distribute was 30 years,
not 20. See 21 U.S.C. § 841(b)(1)(C) (“If any person commits [possession of
cocaine base with intent to distribute] after a prior conviction for a felony drug
offense has become final, such person shall be sentenced to a term of
imprisonment of not more than 30 years. . . .”) (emphasis added). That is so
without regard to the quantity of drugs he was responsible for. See United States
v. Smith, 240 F.3d 927, 930 (11th Cir. 2001) (stating that the 30-year statutory
maximum of § 841(b)(1)(C) applies “even without a specific drug-quantity
finding”).
The district court correctly concluded that White cannot bring this petition
under § 2241. He challenges only the length of his sentence, but it did not exceed
the statutory maximum. Even if there was error at his sentencing, the savings
clause does not apply to White’s claims and his § 2241 petition was not properly
before the district court.
AFFIRMED.
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