ALD-117 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-3500 ___________

JELANI C. SOLOMON, Appellant

v.

WARDEN LEWISBURG USP ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. Civil No. 3:16-cv-00106) District Judge: Honorable John E. Jones, III ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 February 28, 2019 Before: MCKEE, SHWARTZ and BIBAS, Circuit Judges

(Opinion filed: April 4, 2019) _________

OPINION * _________

PER CURIAM

Pro se appellant Jelani Solomon, proceeding in forma pauperis, appeals from the

District Court’s dismissal of his petition pursuant to

for lack of

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. jurisdiction. For the reasons that follow, we will summarily affirm the District Court’s

judgment.

In 2007, Solomon was convicted of several narcotics trafficking and firearms

offenses after a jury trial in the Western District of Pennsylvania. He was sentenced to an

aggregate term of life imprisonment plus ten years and is presently incarcerated at the

Federal Correctional Institution at McKean. This Court affirmed Solomon’s convictions

on direct review. See United States v. Solomon,

(3d Cir. 2010).

Solomon filed a motion seeking relief pursuant to

in the Western

District in 2012. The District Court denied his motion on the merits. See United States

v. Solomon, No. 2:05-CR-0385,

(W.D. Pa. Mar. 7, 2013). In 2016,

Solomon filed a petition under

in the Middle District of Pennsylvania,

seeking to vacate one of his convictions pursuant to

and 924(c)(1)(A)

based on the Supreme Court’s decision in Rosemond v. United States,

(2014). The District Court dismissed Solomon’s petition for lack of jurisdiction after

concluding that Solomon had not shown that a § 2255 motion was an inadequate or

ineffective remedy to address his claim. See Application of Galante,

(3d Cir. 1971).

We have jurisdiction over this appeal pursuant to

. We exercise

plenary review over the District Court’s legal conclusions. See Cradle v. United States

ex rel. Miner,

(3d Cir. 2002) (per curiam). We may summarily affirm

a district court’s decision “on any basis supported by the record” if the appeal fails to

present a substantial question. See Murray v. Bledsoe,

(3d Cir. 2011)

2 (per curiam).

The District Court properly dismissed Solomon’s § 2241 petition. “Motions

pursuant to

are the presumptive means by which federal prisoners can

challenge their convictions or sentences that are allegedly in violation of the

Constitution.” Okereke v. United States,

(3d Cir. 2002). A federal

prisoner must use § 2255 “to raise a challenge to the validity of a conviction or sentence

unless that section is ‘inadequate or ineffective’” to test the legality of his detention. Id.

A § 2255 motion is inadequate, for example, “when a petitioner asserts a claim of ‘actual

innocence’ on the theory that ‘he is being detained for conduct that has subsequently been

rendered non-criminal by an intervening Supreme Court decision’ . . . but is otherwise

barred from challenging the legality of the conviction under § 2255.” United States v.

Tyler,

(3d Cir. 2013) (quoting In re Dorsainvil,

(3d

Cir. 1997)).

In Rosemond, the Supreme Court clarified what the Government must prove to

establish that a defendant is guilty of aiding and abetting an offense under

(c), which prohibits an individual from using or carrying a firearm during and in

relation to any crime of violence or drug trafficking crime. See

. The

Court held that a defendant must have “actively participated in the underlying drug

trafficking or violent crime with advance knowledge that a confederate would use or

carry a gun during the crime’s commission” to sustain a conviction.

The Court

explained that a “§ 924(c) defendant’s knowledge of a firearm must be advance

knowledge.” Id. at 78. The Court concluded that in that case, the trial court’s jury

3 instructions were erroneous because they “did not explain that [the defendant] needed

advance knowledge of a firearm’s presence” and did not instruct the jury to determine

when the defendant first learned of the existence of the firearm at issue. See id. at 81-82.

At Solomon’s trial, the Government presented evidence that Solomon exchanged

cocaine for a fully loaded Glock semiautomatic firearm from Keith Edwards; Solomon

was familiar with the firearm before he arranged the exchange with Edwards. Solomon

then gave the firearm to another individual, who, on Solomon’s instructions, used it to

murder the father of a witness who had cooperated with police on other pending drug

trafficking charges against Solomon. Solomon was charged with both a direct violation

of

(c) and pursuant to

for aiding and abetting a § 924(c)

offense. The trial court instructed the jury that Solomon would be liable for aiding and

abetting a § 924(c) offense if Edwards knowingly traded his firearm for drugs and

Solomon knew of and facilitated that trade. See Smith v. United States,

(1993) (“[T]he exchange of a gun for narcotics constitutes ‘use’ of a firearm ‘during

and in relation to . . . [a] drug trafficking crime’ within the meaning of

(c)(1).”).

Solomon has not identified any error under Rosemond in his jury instructions or

otherwise in the course of his criminal proceedings. We have not yet addressed whether

a claim based on Rosemond may be brought in a § 2241 petition, but we need not do so

here because the record does not support Solomon’s claim of actual innocence. See

Tyler,

(explaining that when a petitioner “contends that he is actually

innocent and being detained for conduct that has subsequently been rendered non-

4 criminal,” we must consider whether the record supports his claim of actual innocence).

Rather, the record evidence indicates that Solomon had advance knowledge of the use of

a gun in a drug trafficking crime when he facilitated the firearm exchange with Edwards.

Because Solomon cannot demonstrate that he was convicted of conduct that is no longer

criminal under Rosemond, the unavailability of relief under § 2255 does not render that

provision inadequate or ineffective to test the legality of Solomon’s detention.

Accordingly, we will summarily affirm the judgment of the District Court.

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