NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 24 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROBERTO RIOS-VIZCARRA, No. 14-17234
Petitioner-Appellant, D.C. No.
1:14-cv-00875-LJO-MJS
v.
GEORGE WIGEN, Warden, Moshannon
Valley Correctional Institution, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neil, Chief District Judge, Presiding
Submitted October 17, 2016**
San Francisco, California
Before: KLEINFELD, TASHIMA, and M. SMITH, Circuit Judges.
Petitioner Rios-Vizcarra appeals the dismissal of his motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255. Rios-Vizcarra claims that a
prior state conviction in California should not be construed as a “prior drug felony”
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for the purposes of 21 U.S.C. § 841(b)(1)(A) after the Supreme Court’s decision in
Descamps v. United States, 133 S.Ct. 2276 (2013). The district court held that his
motion did not qualify as a petition under 28 U.S.C. § 2241, because it did not
claim actual innocence, and dismissed it. We have appellate jurisdiction under 28
U.S.C. § 1291, and affirm.
The district court did not err when it concluded that Rios-Vizcarra failed to
satisfy the requirement of the § 2255(e) escape hatch. Even if it is possible for a
petitioner to “be actually innocent of a noncapital sentence for the purpose of
qualifying for the escape hatch,” Marrero v. Ives, 682 F.3d 1190, 1193, (9th Cir.
2012), Rios-Vizcarra fails to make a plausible showing of actual innocence. Rios-
Vizcarra does not allege that he was factually innocent of the state conviction, nor
was Rios-Vizcarra statutorily ineligible to receive his sentence, either with or
without the enhancement. Finally, Rios-Vizcarra’s sentence poses no violation of
constitutional rights. Failing to meet any of the possible exceptions to the §
2255(e) escape hatch for noncapital sentencing enhancements outlined in Marrero,
682 F.3d at 1193–95, Rios-Vizcarra cannot bring a § 2241 petition to challenge his
sentence.
2
AFFIRMED.
3