Guarascio v. Wilson

United States Court of Appeals
for the Fifth Circuit

No. 19-10784
Summary Calendar

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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
December 3, 2020

Lyle W. Cayce
Clerk
Case: 19-10784 Document: 00515660383 Page: 1 Date Filed: 12/03/2020

No. 19-10784
2
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.
Case: 19-10784 Document: 00515660383 Page: 2 Date Filed: 12/03/2020