Kenemore v. Roy, 071513 FED5, 12-41111

Docket Nº:12-41111
Opinion Judge:PER CURIAM:
Party Name:LAWRENCE D. KENEMORE, JR., Petitioner-Appellant v. KEITH ROY, Warden at FCI Texarkana, Respondent-Appellee
Judge Panel:Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
Case Date:July 15, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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LAWRENCE D. KENEMORE, JR., Petitioner-Appellant

v.

KEITH ROY, Warden at FCI Texarkana, Respondent-Appellee

No. 12-41111

United States Court of Appeals, Fifth Circuit

July 15, 2013

Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:08-CV-104

Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM: [*]

Lawrence D. Kenemore, Jr., federal prisoner # 26175-077, was convicted by a jury of "conspiracy to commit mail fraud, conspiracy to embezzle funds from employee benefit plans, conspiracy to launder money, mail fraud, embezzlement from employee benefit plans, money laundering, and making a false statement to the United States Department of Labor." See United States v. Kenemore, No. 96-11029, 1997 WL 574971 at *1 (5th Cir. Aug. 28, 1997) (unpublished). Kenemore filed a petition under 28 U.S.C. § 2241 arguing that his money laundering conviction should be invalidated in light of the Supreme Court's decision in United States v. Santos, 553 U.S. 507 (2008). The district court dismissed the § 2241 petition because Kenemore did not meet the requirements for proceeding under the savings clause of 28 U.S.C. § 2255 as set forth in Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). In reviewing the denial of habeas relief, the district court's findings of facts are reviewed for clear error and issues of law are reviewed de novo. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).

This court vacated the dismissal of Kenemore's § 2241 petition and remanded to the district court to determine whether, consistent with Garland v. Roy, 615 F.3d 391 (5th Cir. 2010), Kenemore's claim fell within the savings clause. Kenemore v. Roy, 401 F.App'x 975 (5th Cir. 2010) (unpublished). Following remand, the district court again dismissed Kenemore's § 2241 petition because he did not meet the requirements for proceeding under the savings clause of § 2255. The district court found that the convictions on counts 2 and 17-20 were not affected by the holding in Santos because they involved violations of 18 U.S.C. §1956(a)(2)(A), which does not contain the word proceeds. With respect to counts 21-25, the district court judge found that defining proceeds as gross receipts did not cause a merger problem because the monetary transfers were separate from the underlying fraud and embezzlement from employee benefit plan funds and were designed to...

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