IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40610 Conference Calendar

DANIEL CARVAJAL,

Petitioner-Appellant,

versus

JOHN TOMBONE, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-270 -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Daniel Carvajal, federal prisoner # 59101-004, appeals the

district court’s decision in which the court construed his

petition as a

motion and dismissed

it for lack of jurisdiction. He argues that because he is

challenging the manner in which the Bureau of Prisons (BOP) is

executing his sentence, the district court erred in construing

his petition as a

motion. Because Carvajal is

challenging his exclusion from various community-based and drug-

treatment programs due to his status as an Immigration and

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-40610 -2-

Naturalization Service (INS) detainee, he is challenging the

manner in which his sentence is being executed. Section 2241 is

correctly used to attack the manner in which a sentence is

executed. United States v. Cleto,

(5th Cir.

1992). The district court erred in construing Carvajal’s

petition as a

motion and dismissing it for lack

of jurisdiction as the

petition was properly

filed in the district court for the Eastern District of Texas in

which Carvajal is incarcerated. See Hooker v. Sivley,

(5th Cir. 1999).

Carvajal argues in particular that the BOP violated his

equal protection rights in determining that he is not eligible

for various community-based and drug treatment programs because

he is an INS detainee. The BOP’s classification of prisoners

based on whether they are INS detainees or citizens of the United

States is not a suspect classification, and therefore, the

rational basis standard of review is applicable. See Rublee v.

Fleming,

(5th Cir. 1998). The BOP’s

determination that INS detainees are ineligible to participate in

such programs is rationally related to the legitimate

governmental interest of preventing such INS detainees from

fleeing during the community-based portion of the above programs.

See

. Therefore, the district court’s judgment is

affirmed on the alternative ground that Carvajal has not shown

that the BOP violated his equal protection rights in determining

that he was ineligible to participate in various community-based No. 01-40610 -3-

programs. See Rublee,

; United States v.

McSween,

, 687 n.3 (5th Cir. 1995).

AFFIRMED.