Case: 24-10972 Document: 32-1 Page: 1 Date Filed: 04/02/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 24-10972 FILED April 2, 2025 Summary Calendar ____________ Lyle W. Cayce Clerk Alberto Garcia, Petitioner—Appellant, versus Colette S. Peters, Director of Bureau of Prisons; Chad Humphrey, Warden, Respondents—Appellees. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 1:24-CV-146 ______________________________ Before Stewart, Haynes, and Higginson, Circuit Judges.

Per Curiam: * Alberto Garcia, federal prisoner # 44033-480, appeals from the district court’s dismissal of his 28 U.S.C. § 2241 petition, which challenged his conviction for possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A). The district court dismissed the petition for lack of subject matter jurisdiction after finding that Garcia had _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-10972 Document: 32-1 Page: 2 Date Filed: 04/02/2025

No. 24-10972

failed to meet the requirements of the savings clause of 28 U.S.C. § 2255(e), and that his claims were not otherwise cognizable under § 2241. 1 Garcia also moves to proceed in forma pauperis (IFP) on appeal.

In his appeal brief, Garcia reurges his contention that he is innocent of his § 924(c)(1) conviction insofar as his underlying offense involved his trading a controlled substance in exchange for a firearm and, accordingly, under the Supreme Court’s decision in Watson v. United States, 552 U.S. 74 (2007), he could not have “used” a firearm during and in relation to a drug trafficking offense within the meaning of § 924(c)(1)(A). 2 Garcia’s appeal brief does not address the requirements of § 2241 or challenge the correctness of the district court’s dismissal of his habeas petition for lack of subject matter jurisdiction.

To collaterally challenge his conviction under § 2241, Garcia must satisfy the savings clause of § 2255(e) by showing that “unusual circumstances make it impossible or impracticable to seek relief in the sentencing court.” Jones v. Hendrix, 599 U.S. 465, 478 (2023). Garcia has not shown that the district court erred in dismissing his § 2241 petition for lack of subject matter jurisdiction and otherwise fails to raise a nonfrivolous argument that he satisfies the standard set forth in Jones. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His motion to proceed IFP on appeal is therefore DENIED, and the appeal is DISMISSED as frivolous. See Fed. R. App. P. 24(a); 5th Cir. R. 42.2.

_____________________ Garcia filed a § 2255 motion in his criminal case making this same argument.

The district court in that case denied the § 2255 motion as untimely. 28 U.S.C. § 2255(f).

No appeal was taken from the denial of the § 2255 motion.

The judgment states that the conviction was for “possession” of a firearm, not “use” of a firearm.