DeWitt-McCotter v. US Sentencing Cmsn

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40296
Conference Calendar
SAMUEL DEWITT-MCCOTTER,
Petitioner-Appellant,
versus
UNITED STATES SENTENCING COMMISSION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CV-12-MAC-ESH
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Samuel DeWitt-McCotter, federal prisoner # 12687-056, was
convicted of conspiring to distribute cocaine and using a firearm
during the commission of a drug trafficking offense. He appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition
challenging this conviction. DeWitt-McCotter argues that the
district court erred by holding that his 28 U.S.C. § 2241
petition was subject to dismissal because it did not warrant
application of the “savings clause” set forth in 28 U.S.C.
United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2004
Charles R. Fulbruge III
Clerk

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No. 04-40296
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§ 2255. He contends that his sentence is not authorized because
it violates the Ex Post Facto Clause and, in light of Bailey v.
United States, 516 U.S. 137 (1995), he was convicted of a
nonexistent offense. The district court found that DeWitt-
McCotter had raised a Bailey claim in a prior motion before the
sentencing court.
Because DeWitt-McCotter’s claims fail to meet the requisite
standard, the “savings clause” is not applicable to his 28 U.S.C.
§ 2241 petition. See Reyes-Requena v. United States, 243 F.3d
893, 904 (5th Cir. 2001). Accordingly, the district court’s
judgment is AFFIRMED.

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