                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 9, 2007
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 06-40554
                         c/w No. 06-40884
                         Summary Calendar


                        JOE ALEX ROBERTSON,

                       Petitioner-Appellant,

                              versus

                     UNITED STATES OF AMERICA,

                       Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:05-CV-197
                      --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges

PER CURIAM:*

     Joe Alex Robertson, federal prisoner # 91990-080, appeals the

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

which he challenged his sentence for bank robbery.           Robertson

argues that Almendarez-Torres v. United States, 523 U.S. 224 (1998)

was wrongly decided in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).            He

also asserts that the career enhancement provision of U.S.S.G. §



     *
      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this opinion should not be published and is not precedent except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. 06-40554
                                    c/w No. 06-40884
                                           -2-

4B1.1 was improperly applied to his sentence because his driving

while    intoxicated      convictions          do   not   constitute           “crimes    of

violence” in light of Leocal v. Ashcroft, 543 U.S. 1 (2004).

Robertson      contends     that    he    is    entitled        to   proceed    under     the

“savings clause” of 28 U.S.C. § 2255 because he is “actually

innocent” of the career offender enhancement.

       Robertson has not made the requisite showing to qualify for

the savings clause of § 2255.                  His challenge to the sentencing

court’s       application    of     the     Guidelines          is   not   based     on    a

retroactively applicable Supreme Court decision which establishes

that    the    bank   robbery      for    which      he   was    convicted      no   longer

qualifies as a violation of law.                     See Reyes-Requena v. United

States, 243 F.3d 893, 904 (5th Cir. 2001).                  His argument that he is

actually innocent of being a career offender in light of Leocal “is

not the type of argument that courts have recognized may warrant

review under § 2241.”         See Kinder v. Purdy, 222 F.3d 209, 213 (5th

Cir. 2000).

       Additionally,      this      court      has    determined        that    Apprendi,

Blakely, and United States v. Booker 543 U.S. 220 (2005), do not

apply retroactively to cases on collateral review and do not

satisfy the test for filing a § 2241 petition under the savings

clause. See Wesson v. United States Penitentiary Beaumont, TX, 305

F.3d 343, 347-48 (5th Cir. 2002); Padilla v. United States, 416

F.3d 424, 427 (5th Cir. 2005).              Further, Robertson’s argument that

Almendarez-Torres was wrongly decided in light of Apprendi and
                               No. 06-40554
                             c/w No. 06-40884
                                    -3-

Blakely is foreclosed.     See United States v. Garza-Lopez, 410 F.3d

268, 276 (5th Cir. 2005).

     Robertson also challenges the district court’s denial of his

motion to hold his case in abeyance pending the Supreme Court’s

decision in   Washington    v.   Recuenco,      126   S.   Ct.   2546   (2006).

The Supreme Court has issued its decision in Recuenco and has held

that a Blakely error does not constitute a structural error.               See

Recuenco, 126 S. Ct. at 2553.     Thus, Robertson’s argument that his

sentence violates Blakely and constitutes a structural error is

meritless.    Moreover, Blakely and Booker are not retroactively

applicable to Robertson’s case.        See Padilla, 416 F.3d at 427.

Thus, the district court did not err in denying the motion.

     Accordingly, the judgments of the district court are affirmed.

Robertson is warned that the filing of repetitive or frivolous

filings in the future will invite the imposition of sanctions.

     AFFIRMED; SANCTION WARNING ISSUED.
