DLD-136                                                     NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 13-3659
                                       ___________

                                  RALPH A. ROMERO,
                                                          Appellant

                                             v.

                              WARDEN FLORENCE FCI
                        ____________________________________

                      On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                              (D.C. Civil No. 1:11-cv-00246)
                      District Judge: Honorable Sean J. McLaughlin
                       ____________________________________

           Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    December 19, 2013

          Before: SMITH, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: January 14, 2014 )
                                        _________

                                        OPINION
                                        _________


PER CURIAM

      Ralph A. Romero, a federal inmate, appeals pro se from an order of the United States

District Court for the Western District of Pennsylvania denying his post-judgment motion for

relief. Because the appeal presents no substantial question, we will summarily affirm the

                                             1
District Court’s order, see 3d Cir. L.A.R. 27.4; I.O.P. 10.6, and deny his motion for

appointment of counsel.

                                                I.

       In 2003, Romero was convicted of nine counts of controlled substance violations in the

United States District Court for the Northern District of Indiana. Romero received a total

sentence of 420 months’ incarceration, to be followed by five years of supervised release.

Romero appealed, and the United States Court of Appeals for the Seventh Circuit remanded

the case to the Northern District of Indiana pursuant to United States v. Paladino, 

(7th Cir. 2005), for a determination on whether the trial judge would have imposed a lower

sentence in light of United States v. Booker, 

(2005). The Northern District of

Indiana adhered to the original sentence, and Romero’s subsequent attempts to appeal his

conviction and sentence were unsuccessful. Romero then unsuccessfully sought collateral

relief pursuant to 28 U.S.C. § 2255.

       After Romero had been transferred to the Federal Correctional Institution, McKean, in

Pennsylvania, he filed a second § 2255 motion. He sought to invoke the “savings clause” of §

2255(e), asking the Northern District of Indiana to treat his motion as a petition for a writ of

habeas corpus brought pursuant to 28 U.S.C. § 2241. The Northern District of Indiana denied

Romero’s motion as an unauthorized second or successive § 2255 motion, and concluded that,

to the extent that Romero’s motion was actually a § 2241 petition, Romero had not

demonstrated that the court had jurisdiction to consider the petition.

       In 2011, Romero filed a § 2241 petition in the District Court for the Western District of

Pennsylvania. He claimed that he was actually innocent of the crimes for which he had been

                                                2
convicted, and that the Northern District of Indiana had erred in computing his sentence

enhancements under the United States Sentencing Guidelines (“USSG”). The Magistrate

Judge concluded that Romero had not established that § 2255 was an inadequate or ineffective

remedy and, on October 10, 2012, the Western District dismissed Romero’s habeas petition

with prejudice for lack of jurisdiction. In July 2013, Romero asked the Western District to

return to his habeas proceedings, arguing that Alleyne v. United States, 

(2013),

and Peugh v. United States, 

(2013), demonstrated that his § 2241 petition had

been improperly denied and that his continued imprisonment was unconstitutional. After

determining that Romero was merely attempting to relitigate the issues raised in his § 2241

petition and that Romero had not met any of the criteria for reopening the judgment, the

District Court denied Romero’s request. Romero timely appealed.

                                              II.

      We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the denial of a motion

for relief from judgment for abuse of discretion, Budget Blinds, Inc. v. White, 

,

251 (3d Cir. 2008),1 and exercise plenary review over the District Court’s legal conclusions,

Vega v. United States, 

, 314 (3d Cir. 2007). We may summarily affirm a

judgment of the District Court if the appeal does not raise a substantial question. See I.O.P.

10.6; see also Murray v. Bledsoe, 

, 247 (3d Cir. 2011) (per curiam).

                                              III.


1
  Although Romero did not specify the rule he sought relief under, we agree with the District
Court’s recharacterization of his request as a motion brought pursuant to Fed. R. Civ. P. 60(b).
See Ahmed v. Dragovich, 

, 208 (3d Cir. 2002) (stating that “we are free to
recharacterize the motion to . . . match the substance of the relief requested”).
                                               3
       The Western District of Pennsylvania determined that Romero did not state any reasons

justifying relief pursuant to Fed. R. Civ. P. 60(b). Only extraordinary circumstances warrant

granting Rule 60(b)(6) relief.2 See Martinez-McBean v. Gov’t of V.I., 

, 911 (3d

Cir. 1977).    Without more, an intervening development in the law rarely establishes

extraordinary circumstances for reopening a judgment. See Morris v. Horn, 

,

341-44 (3d Cir. 1999); Reform Party v. Allegheny Cnty. Dep’t of Elections, 

, 311

(3d Cir. 1999) (en banc).

       In his new motion, Romero argued that Alleyne and Peugh show that the sentencing

court’s reliance on judicial factfinding to set his sentence was improper. In Alleyne, the

Supreme Court held that a finding of fact that increases the mandatory minimum sentence for a

crime must be “submitted to the jury and found beyond a reasonable 

. Notably, Alleyne involved mandatory statutory minimum sentences, not routine

calculations under the Sentencing Guidelines of the kind that Romero has repeatedly sought to

challenge. See United States v. Romero, 131 F. App’x 491, 492 (7th Cir. 2005); see also

Habeas Petition (dkt. #4), 5 (complaining about the sentencing court’s factfinding under the

Guidelines). Likewise, in Peugh, the Supreme Court held that a “retrospective increase in the

Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to

constitute an ex post facto 

. Romero has not argued that any

harsher sentencing guideline was retrospectively applied to him.




2
  We note that Romero did not assert any facts pertinent to subsections (b)(1), (2), (3), (4), or
(5) of Rule 60. See Fed. R. Civ. P. 60(b)(1)-(5).
                                               4
       Even if Romero were making such arguments, we stress, he would not be able to show

the extreme and unexpected hardship necessary for Rule 60(b) relief. See Budget 

. As the Magistrate Judge explained in recommending denial of Romero’s § 2241

petition, claims of sentencing error like his are generally not cognizable on § 2241 review. See

Okereke v. United States, 

, 120-21 (3d Cir. 2002). For that matter, we note, no

other court of appeals has granted Rule 60(b)(6) relief on the basis of either Peugh or Alleyne.

       For substantially the same reasons set forth by the District Court, therefore, we will

summarily affirm its order declining to reopen Romero’s § 2241 proceedings. See 3d Cir.

L.A.R. 27.4; I.O.P. 10.6. Romero’s motion for appointment of counsel is denied.




                                                5