Joseph Guarascio v. Eric Wilson

Case: 19-10784 Document: 00515660383 Page: 1 Date Filed: 12/03/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 3, 2020 No. 19-10784 Lyle W. Cayce Summary Calendar Clerk Joseph Michael Guarascio, Petitioner—Appellant, versus Eric D. Wilson, Warden, Respondent—Appellee. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:18-CV-689 Before Higginbotham, Jones, and Costa, Circuit Judges. Per Curiam:* Joseph Michael Guarascio, federal prisoner # 70537-056, appeals the district court’s dismissal for lack of jurisdiction of his 28 U.S.C. § 2241 petition challenging his conviction and sentence for the manufacture of child pornography in violation of 18 U.S.C. § 2251(a) and (b). According to * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-10784 Document: 00515660383 Page: 2 Date Filed: 12/03/2020 No. 19-10784 Guarascio, he is actually innocent of the offense of conviction because Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), reduced the range of conduct to which § 2251 and 18 U.S.C. § 2256 apply based on its holding that the generic federal definition of a minor is a person under 16 years of age. We review the district court’s findings of fact for clear error and conclusions of law de novo. See Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). As the district court concluded, Esquivel-Quintana does not apply in the instant matter. The term “minor,” as used in § 2251, is defined in § 2256, and, unlike the immigration statute at issue in Esquivel-Quintana, § 2256 unambiguously defines a minor as a “person under the age of eighteen years.” § 2256. Esquivel-Quintana, therefore, whether retroactively applicable or not, does not establish that Guarascio may have been convicted of a nonexistent offense, and the savings clause is unavailable to Guarascio. See § 2255(e); Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Similarly, as the district court determined, Guarascio’s actual innocence arguments based on a purported fraudulent plea agreement and counsel’s ineffectiveness do not rely on a retroactive Supreme Court decision demonstrating that he was convicted of a nonexistent offense. Accordingly, these claims do not satisfy the requirements of the savings clause for filing a § 2241 petition. See Reyes-Requena, 243 F.3d at 904. Also, to the extent Guarascio argues that the actual innocence standard is an exception to the savings clause, he has not established that actual innocence provides a gateway for review of claims raised in a § 2241 petition. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Schlup v. Delo, 513 U.S. 298, 315 (1995). Thus, the district court did not err in concluding that § 2241 relief was unavailable. See Christopher, 342 F.3d at 381-82. Accordingly, the judgment of the district court is AFFIRMED. 2 19-10784 Court of Appeals for the Fifth Circuit ca5 5th Cir. Joseph Guarascio v. ...

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