Barron v. United States

223 F. App'x 673

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 1, 2007
• Docket: No. 06-35142
• Status: Published

Opinion

MEMORANDUM

**

Ismael Barron appeals pro se from the district court’s judgment denying his petition for a writ of audita querela. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

To the extent Barron contends he is entitled to a writ of audita querela to obtain re-sentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), his contention is foreclosed. See Carrington v. United States, 470 F.3d 920, 923 (9th Cir.2006) (holding that petitioners may not obtain re-sentencing based on Booker by collaterally attacking their sentences through a petition for a writ of audita querela).

To the extent Barron contends that he is seeking only a new Presentence Report, this contention also is foreclosed. See Doe v. INS, 120 F.3d 200, 203-04 (9th Cir.1997) (recognizing that, to the extent writs of audita querela still exist, they are available only if a defendant has a legal defense or discharge to the underlying judgment and only when the defense or discharge arises subsequent to entry of the final judgment).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.