Case: 09-10727     Document: 00511159327          Page: 1    Date Filed: 06/30/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 30, 2010
                                     No. 09-10727
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ROBERT RICH,

                                                   Petitioner-Appellant

v.

REBECCA TAMEZ, Warden, FCI - Ft Worth,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 4:09-CV-172


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        In 1990, Robert Rich, federal prisoner # 19351-077, was convicted of
conducting a continuing criminal enterprise (CCE), conspiring to possess and
possession with intent to distribute amphetamine, and use of a telephone to
facilitate a drug offense. In 2009, Rich filed a 28 U.S.C. § 2241 petition in the
district court. Citing the Supreme Court’s decision in Richardson v. United
States, 

, 824 (1999), Rich argued that the jury instruction for his
CCE offense impermissibly enlarged the indictment.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10727   Document: 00511159327 Page: 2        Date Filed: 06/30/2010
                                No. 09-10727

      Rich appeals the district court’s dismissal of his petition. He argues that
the district court erred by relying on the savings clause test set forth in Reyes-
Requena v. United States, 

, 904 (5th Cir. 2001). Our review is de
novo. See Jeffers v. Chandler, 

, 830 (5th Cir. 2001).
      In 

, we held that in order to bring a
§ 2241 petition under the savings clause, the petitioner must set forth a claim
(i) that is based on a retroactively applicable Supreme Court decision which
establishes that the petitioner may have been convicted of a nonexistent offense
and (ii) that was foreclosed by circuit law at the time when the claim should
have been raised in the petitioner’s trial, appeal, or first § 2255 motion. Rich
argues that rather than the test set forth in Reyes-Requena, we should employ
the savings clause test set forth by the Seventh Circuit in In re Davenport, 

, 611 (7th Cir. 1998).
      Rich has not shown that the facts of his case are not controlled by Reyes-
Requena. Absent an en banc decision by this court or intervening Supreme
Court decision explicitly or implicitly overruling Reyes-Requena, we are bound
by the precedent established in Reyes-Requena. See United States v. Rodriguez-
Jaimes, 

, 288 (5th Cir. 2007).       We note, however, that Rich’s
reliance on the Seventh Circuit’s Davenport test is flawed because Davenport
also contains an actual innocence requirement. See 

& n. 28.
      Rich has not demonstrated that the district court erred in dismissing his
§ 2241 under the reasoning set forth in 

. Accordingly, the
judgment of the court is AFFIRMED.




                                        2