
    UNITED STATES of America, Plaintiff-Appellee v. Juan DELGADO, Defendant-Appellant
    No. 15-40411
    United States Court of Appeals, Fifth Circuit.
    Date Filed: 09/08/2016
    Revised September 15, 2016
    Paul Eunkuk Kim, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee
    Juan Delgado, Pro Se
    Before WIENER, CLEMENT, and COSTA, Circuit Judges.
   PER CURIAM:

I.

In 2008, Defendant-Appellant Juan Delgado pleaded guilty to and was convicted of conspiracy to possess 188 kilograms of marijuana with the intent to distribute it. At sentencing, the district court determined that Delgado was a “career offender” under § 4B1.1 of the United States Sentencing Guidelines (the “Guidelines”) after classifying his previous conviction for escape as a “crime of violence.” As a career offender, Delgado’s range of imprisonment under the Guidelines increased from 77 to 96 months to 188 to 236 months. The district court sentenced him to 188 months in prison. Delgado then appealed.

On that direct appeal, Delgado asserted that the district court had erred in categorizing his prior conviction of escape. He insisted that his conviction, which occurred because he fled a halfway house, did not qualify as a crime of violence under the United States Supreme Court’s opinion in Chambers v. United States. That panel rejected his contention and affirmed.

Delgado then attacked his sentence on the same grounds under 28 U.S.C. § 2255. The district court denied his motion, and he applied for a certifícate of appealability (“COA”). Both the district court and this court denied his request.

In 2014, Delgado once again attacked his sentence under § 2255. He again contended that the district court erred in its appraisal of his earlier conviction. In doing so, he relied on this court’s more recent opinion in United States v. Jones, which held that “[ajbsconding from a halfway house does not categorically present a serious potential risk of physical injury to another” and, as a consequence, is not a crime of violence under the Guidelines. The district court denied Delgado’s subsequent motion under § 2255 as successive.

Delgado then moved for relief from that denial under Federal Rule of Civil Procedure 60(b) and applied for another COA. In considering these, the district court indicated that, under the new opinion in Jones, it would not have considered the escape a crime of violence. It nonetheless determined that, as with Delgado’s successive motion under § 2255, it lacked authority to consider the motion under Rule 60(b). It then granted Delgado’s application for a COA as to whether his motion under § 2255 or Rule 60(b) should be considered a petition under 28 U.S.C. § 2241 on the basis of the “savings clause” of § 2255. Delgado now appeals.

II.

Delgado insists that any remedy under § 2255 is ineffective or inadequate to attack the legality of his detention and that, as a result, the district court should have construed his motions under Rule 60(b) and § 2255 as petitions under § 2241 pursuant to this court’s recent opinion in United States v. Cano. The government responds that the district court properly determined that it lacked authority to consider Delgado’s motions as successive and that, even so, Cano is distinguishable.

Under the savings clause of § 2255, a federal prisoner may attack the legality of his detention in a petition under § 2241 if he establishes that the remedies provided under § 2255 are “inadequate or ineffective to test the legality of his detention.” For the savings clause to apply, a petition must show that the claim (1) “is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense” and (2) “was foreclosed by circuit law at the time when the claim should have been raised in the petitioner’s trial, appeal, or first § 2255 motion.” Even if either of Delgado’s motions are considered to be such a petition, each fails the above said test because it raises alleged errors regarding his sentence, not his conviction. The savings clause of § 2255 therefore does not apply.

Instead, Delgado is impermissibly using the motions under § 2255 and Rule 60(b) “as an occasion to relitigate [his] case” and, for that matter, his direct appeal. As discussed above, the opinion in Delgado’s direct appeal determined that “[his] escape conviction [wa\s a [crime of violence].” That opinion, of course, directly conflicts with the subsequent opinion in Jones, which determined that an identical escape conviction toas not such a crime. Notably, the differing opinions were not the product of intervening law; rather, each panel considered and relied on the same precedents.

Accordingly, the earlier opinion was not displaced by the later opinion in Jones. Although the earlier opinion in Delgado’s direct appeal was unpublished, it is still binding precedent here “under the doctrine of res judicata, collateral estoppel or law of the case (or similarly to show double jeopardy, notice, sanctionable conduct, entitlement to attorney’s fees, or the like).” Stated differently, Jones is entirely irrelevant in this context.

Although we appreciate Delgado’s frustration at the divergent results in his direct appeal and in Jones, we are bound by the former. This result will remain absent an en banc clarification by this court or a ruling on point by the Supreme Court.

AFFIRMED. 
      
       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 v. Delgado, 320 Fed.Appx. 286 (5th Cir. 2009).
     
      
      . 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).
     
      
      . 752 F.3d 1039 (5th Cir. 2014).
     
      
      . Id. at 1046.
     
      
      . United States v. Cano, No. 14-40839, *1-2 (5th Cir. April 14, 2015) (unpublished).
     
      
      . Delgado does not assert — and we do not consider — whether Section 4B 1.2(a)(2) of the Sentencing Guidelines violates his right' to due process. See Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted, - U.S. -, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016).
     
      
      . Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001).
     
      
      . Id. at 904.
     
      
      . See Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005); see also In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011).
     
      
      . See Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 157 (5th Cir. 2004).
     
      
      . Delgado, 320 Fed.Appx. at 287 (emphasis added).
     
      
      . Jones, 752 F.3d at 1046.
     
      
      . 5th Cir. R. 47.5.4 (2016); see Dupuy v. Cain, 201 F.3d 582, 585 (5th Cir. 2000) ("[A] federal habeas petitioner is required to raise all issues in the first petition; a subsequent ... petition raising new issues is subject to dismissal for abuse of writ.”).
     