Case: 17-40883      Document: 00514530817         Page: 1    Date Filed: 06/27/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                    No. 17-40883                              FILED
                                  Summary Calendar                        June 27, 2018
                                                                         Lyle W. Cayce
KELVIN ANDRE SPOTTS,
                                                                              Clerk


                                                 Petitioner-Appellant

v.

U.S. PENITENTIARY WARDEN FRANK LARA,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:17-CV-207


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Kelvin Andre Spotts, federal prisoner # 05613-088, was convicted of
conspiracy to distribute and possess with intent to distribute marijuana,
cocaine, and cocaine base; using and carrying firearms during and in relation
to a drug trafficking crime; and conspiracy to launder monetary instruments.
He now appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-40883    Document: 00514530817     Page: 2   Date Filed: 06/27/2018


                                 No. 17-40883

wherein he argued that in light of Mathis v. United States, 136 S. Ct. 2243
(2016), United States v. Tanksley, 848 F.3d 347 (5th Cir.), supplemented by 854
F.3d 284 (5th Cir. 2017), and United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016), his prior Georgia drug conviction no longer qualified as a predicate
felony offense for purposes of a sentence enhancement under 21 U.S.C. § 851.
Spotts contends that the district court erred in determining that he failed to
satisfy the requirements of the savings clause of 28 U.S.C. § 2255(e).
      Our review is de novo. Padilla v. United States, 416 F.3d 424, 425 (5th
Cir. 2005). Because Spotts challenges the legality of his sentence, rather than
the manner in which it is being executed, his claim is properly construed as
arising under § 2255. See id. at 425-26. Nevertheless, under the savings clause
of § 2255(e), a § 2241 petition may be considered if Spotts shows that § 2255 is
“inadequate or ineffective to test the legality of his detention.” § 2255(e). To
satisfy § 2255(e)’s saving clause, Spotts must establish that (1) his claim is
“based on a retroactively applicable Supreme Court decision which establishes
that the petitioner may have been convicted of a nonexistent offense,” and (2)
his claim was “foreclosed by circuit law at the time when the claim should have
been raised in [his] trial, appeal, or first § 2255 motion.” Reyes-Requena v.
United States, 243 F.3d 893, 904 (5th Cir. 2001).
      As the district court correctly determined, Spotts has failed to make such
a showing. See id. at 904. We have repeatedly held that challenges to the
validity of a sentencing enhancement do not satisfy the savings clause of
§ 2255(e). See, e.g., In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla,
416 F.3d at 426-27.
      The judgment of the district court is AFFIRMED.




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