                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 20, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-11483
                         Summary Calendar


JAMES H. MATLOCK,

                                    Petitioner-Appellant,

versus

COLE JETER, Warden, Federal Medical Center, Fort Worth,

                                    Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:04-CV-863-A
                      --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     James H. Matlock, a federal prisoner (# 90897-012), appeals

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

which was purportedly filed pursuant to the “savings clause” of

28 U.S.C. § 2255.   He attacked his 1991 sentence for distribution

of cocaine base, arguing pursuant to Blakely v. Washington,

124 S. Ct. 2531 (2004), that the facts underlying his “career

offender” enhancement, U.S.S.G. § 4B1.1, were neither submitted

to a jury nor admitted, in violation of the Sixth Amendment.



     *
       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this opinion should not be published and is not precedent except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. 04-11483
                                -2-

     Now relying on United States v. Booker, 125 S. Ct. 738

(2005), Matlock contends that his Booker claim falls within the

savings clause in 28 U.S.C. § 2255.   To proceed under the savings

clause, the applicant must make the following three-part showing:

(1) that his claim is based on a retroactively applicable Supreme

Court decision; (2) the Supreme Court case “establishes that he

was ‘actually innocent’ of the charges against him because the

decision decriminalized the conduct for which he was convicted”;

and (3) precedent foreclosed this claim at the time of the

petitioner’s trial, appeal, or first § 2255 motion.     Christopher

v. Miles, 342 F.3d 378, 382 (5th Cir.) (citing Reyes-Requena v.

United States, 243 F.3d 893, 904 (5th Cir. 2001)), cert. denied,

540 U.S. 1085 (2003).

     Even assuming arguendo that the savings clause applies,

Matlock has not stated a cognizable Booker claim.     Determinations

supporting a career-offender enhancement are questions of law,

not fact, and do not implicate the Sixth Amendment.     See United

States v. Guevara,      F.3d    , No. 03-11299 (5th Cir. May 2,

2005), 2005 WL 1009772 at *6.   “Career offender status is not a

‘sentencing judge’s determination of a fact other than a prior

conviction.’”   Id. (citing Booker, 125 S. Ct. at 747 n.1).

     The judgment of the district court is AFFIRMED.
