Solan v. USA, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 10, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30804
Conference Calendar
DAVID SOLAN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA; CARL CASTERLINE,
Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 03-CV-1168
--------------------
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
David Solan (Solan), federal prisoner #15985-018, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition
in which he challenged the sentences for his convictions on one
count pursuant to 18 U.S.C. § 924(b) (transportation of firearms
and ammunition with intent to commit a felony) and ten counts
pursuant to 18 U.S.C. § 1958 (use of interstate facilities in a
murder-for-hire scheme). Solan argues that the district court

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No. 03-30804
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erred in using acquitted conduct and unindicted conduct to
justify making an upward departure in his sentence.
Solan is not entitled to relief pursuant to the savings
clause because his claim is not based on a retroactively
applicable Supreme Court decision which establishes his
innocence. Additionally, Solan’s claim was not foreclosed by
circuit law at the time of his trial, appeal, or first § 2255
motion. See Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001). In fact, Solan acknowledges that he raised the
instant claim on direct appeal and in his first § 2255 motion.
The fact that Solan was unsuccessful in his first § 2255 motion
or the inability of him to meet AEDPA’s “second or successive”
requirement does not make § 2255 inadequate or ineffective. See
Jeffers v. Chandler, 253 F.3d 827, 829 (5th Cir. 2001).
Solan’s argument for the expansion of § 2255's savings
clause beyond the criteria established by this court in Reyes-
Requena has already been rejected in Wesson v. U.S. Penitentiary
Beaumont, TX, 305 F.3d 343, 348 (5th Cir. 2002), cert. denied,
123 S. Ct. 1374 (2003). Solan does not raise on appeal his claim
that he is entitled to relief because he is imprisoned in
violation of the International Convention on Civil and Political
Rights. It is therefore deemed abandoned, and this court need
not address it. See Yohey v. Collins, 985 F.2d 222, 225 (5th
Cir. 1993).

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Based on the foregoing, the district court’s dismissal of
Solan’s 28 U.S.C. § 2241 petition is AFFIRMED.

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