                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 24, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk

                              No. 05-11430
                          Conference Calendar



YASSER RIVERA,

                                      Petitioner-Appellant,
versus

DAN JOSLIN,
                                      Respondent-Appellee.


                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 3:05-CV-1426
                       --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Yasser Rivera, federal prisoner # 36918-180, appeals the

district court’s dismissal of his 28 U.S.C. § 2241 petition

challenging his jury-trial convictions and sentences for

importation of five kilograms or more of cocaine and possession

with intent to distribute five kilograms or more of cocaine.

Rivera asserts that he was entitled to bring his claim in a

§ 2241 petition under the savings clause of 28 U.S.C. § 2255 and

that the refusal to hear his claim amounted to a suspension of


     *
       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this opinion should not be published and is not precedent except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.
                              No. 05-11430
                                   -2-

the writ of habeas corpus.     He also argues the merits of his

claim that the Supreme Court’s ruling that 18 U.S.C. § 3553(b)(1)

was unconstitutional in United States v. Booker, 543 U.S. 220

(2005), abated the prosecution against him.     We review the

district court’s findings of fact for clear error and its

conclusions of law de novo.     See Christopher v. Miles, 342 F.3d

378, 381 (5th Cir. 2003).

     As Rivera’s claim did not rely upon a retroactively

applicable Supreme Court decision that decriminalized the conduct

for which he was convicted, Rivera has not made the required

showing to challenge his convictions and sentences in a § 2241

petition.   See id. at 382.    Even if we were to assume that Rivera

challenged only his continued confinement, not his convictions

and sentences, he was still not entitled to relief.     The common

law provided that the repeal of a criminal or penalty statute

abated all prosecutions thereunder that were not final.     See

United States v. Blue Sea Line, 553 F.2d 445, 447 (5th Cir.

1977); United States v. Chambers, 291 U.S. 217, 223 (1934).

Rivera was convicted of violating 21 U.S.C. §§ 841(a)(1) and

952(a), and the sentencing provisions for his convictions are set

forth in 21 U.S.C. §§ 841(b)(1) and 960(b)(1).     As the statute

ruled unconstitutional in Booker concerned only what sentences

Rivera received within the statutory ranges, the rule of

abatement was inapplicable.     Furthermore, even if abatement by

repeal had been applicable, the prosecution of Rivera would not
                           No. 05-11430
                                -3-

have been abated due to the general savings clause of 1 U.S.C.

§ 109.   See United States v. Brown, 429 F.2d 566, 568 (5th Cir.

1970).

     AFFIRMED.
