                                                       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. 05-41313
                        Conference Calendar



MELVIN DEWAYNE SMITH,

                                    Petitioner-Appellant,

versus

UP CHILDRESS, Warden,
                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 1:05-CV-520
                       --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Melvin DeWayne Smith, federal prisoner # 66584-079, appeals

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

challenging his guilty-plea conviction and sentence for engaging

in a continuing criminal enterprise to possess with intent to

distribute controlled substances.   Smith’s motion for

supplementation of brief is granted.

     Smith argues that his sentence violated his Sixth Amendment

rights as set forth in United States v. Booker, 543 U.S. 220

(2005), because it was enhanced based upon facts not alleged in

     *
       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this opinion should not be published and is not precedent except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. 05-41313
                                -2-

the indictment, mentioned in the plea agreement, admitted by him,

or proven to a jury.   The decision in Booker does not apply

retroactively to cases on collateral review, and a Booker claim

does not satisfy the test for filing a § 2241 petition under the

savings clause of 28 U.S.C. § 2255.   Padilla v. United States,

416 F.3d 424, 427 (5th Cir. 2005).

     For the first time on appeal, Smith argues that his

conviction was improper under Richardson v. United States, 526

U.S. 813 (1999), and that this claim may be brought in a § 2241

petition under the savings clause of § 2255.   This newly raised

legal claim is not reviewable for the first time on appeal.    See

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999).   Smith raised his Richardson claim in this court in his

appeal from the denial of his previous § 2241 petition.    We warn

Smith that filing future repetitive appeals will subject him to

sanctions.

     AFFIRMED; MOTION FOR SUPPLEMENTATION OF BRIEF GRANTED;

SANCTION WARNING ISSUED.
