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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CV-197
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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this opinion should not be published and is not precedent except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
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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
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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.