Robert RICH, Petitioner-Appellant v. Rebecca TAMEZ, Warden, FCI-Ft. Worth, Respondent-Appellee, 384 F. App'x 390

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, 526 U.S. 813, 824, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), Rich argued that the jury instruction for his CCE offense impermissibly enlarged the indictment. 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, 243 F.3d 893, 904 (5th Cir.2001). Our review is de novo. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.2001). In Reyes-Requena, 243 F.3d at 900-04, 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, 147 F.3d 605, 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-Re-quena, we are bound by the precedent established in Reyes-Requena. See United States v. Rodriguez-Jaimes, 481 F.3d 283, 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 Reyes-Requena, 243 F.3d at 902-03 & n. 28. Rich has not demonstrated that the district court erred in dismissing his § 2241 under the reasoning set forth in Jeffers, 253 F.3d at 830.

Accordingly, the judgment of the court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.