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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15414
Non-Argument Calendar
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D.C. Docket No. 5:11-cv-00390-WTH-PRL
ENRIQUE ACOSTA,
Petitioner - Appellant,
versus
WARDEN, FCC COLEMAN - MEDIUM,
Respondent - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 28, 2017)
Before TJOFLAT, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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In 1993, Enrique Acosta was convicted of conspiracy to possess with intent
to distribute cocaine, in violation of 21 U.S.C. §§ 841(a) and 846; possession of
cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a); use of a
firearm silencer or muffler in relation to drug trafficking, in violation of 18 U.S.C.
§ 924(c)(1); 1 and possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g), as well as two other firearms charges that are immaterial to this
appeal. Based on then-existing law, Acosta had three prior convictions that made
him an Armed Career Criminal under 18 U.S.C. § 924(e) and subject to a
mandatory minimum sentence of 15 years’ (or 180 months’) imprisonment. Thus,
he was sentenced to 262 months’ imprisonment for his § 922(g) conviction.
Acosta also was sentenced to 240 months’ imprisonment for each of the cocaine
convictions, to be served concurrently with his § 922(g) sentence, and to 360
months’ imprisonment on the § 924(c)(1) conviction, to be served consecutively
with his other sentences as required by the statute.
In 2002, Acosta filed an unsuccessful motion to vacate his conviction and
sentence pursuant to 28 U.S.C. § 2255. In 2011, Acosta filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241, asserting that intervening case law
established that (1) a jury was required to find beyond a reasonable doubt that his
firearm was equipped with a silencer or muffler—which Acosta alleges did not
1
Unless otherwise noted, references to18 U.S.C. § 924 refer to the version effective at
the time of Acosta’s sentencing in 1993.
2
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happen—before he could be sentenced pursuant to § 924(c)(1); (2) his prior state
drug convictions were invalid as the underlying state statute was unconstitutional;
and (3) his prior convictions could not serve as bases for the § 924(e) sentence
enhancement. The district court dismissed Acosta’s petition for lack of
jurisdiction. Acosta now appeals the district court’s dismissal with regard to his
claim that intervening case law required the jury to find that his firearm was
equipped with a silencer or muffler before it could sentence him pursuant to
§ 924(c)(1).2
Under 28 U.S.C. § 2255’s “saving clause,” an inmate may only file a
petition for a writ of habeas corpus under § 2241 where a motion for relief
pursuant to § 2255 is “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). We recently held, sitting en banc, that “a change
in caselaw does not make a motion to vacate a prisoner’s sentence ‘inadequate or
ineffective to test the legality of his detention.’” McCarthan v. Dir. of Goodwill
Indus.-Suncoast, Inc., No. 12-14989, 2017 WL 977029, at *1 (11th Cir. Mar. 14,
2017) (quoting 28 U.S.C. § 2255(e)). “Even if a prisoner’s claim fails under
circuit precedent, a motion to vacate remains an adequate and effective remedy for
2
On appeal, Acosta acknowledges that the appropriate vehicle through which to assert
his claim that he erroneously was sentenced as an Armed Career Criminal under § 924(e) is a
second or successive § 2255 petition. We previously granted Acosta leave to file such a petition.
See In re Acosta, No. 16-13052 (June 22, 2016). We note that his petition remains pending in
district court.
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a prisoner to raise the claim and attempt to persuade the court to change its
precedent, and failing that, to seek certiorari in the Supreme Court.” Id. at *17.
Consequently, Acosta was required to challenge to his § 924(c)(1) sentence
in his initial § 2255 motion, notwithstanding the state of the law at the time. The
saving clause does not enable him to now raise that issue as part of a § 2241
petition. We therefore affirm the district court’s dismissal of Acosta’s petition for
lack of jurisdiction.
AFFIRMED.
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