Gunn v. United States

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 19, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-50087 Summary Calendar

BUDDY RAY GUNN,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-02-CV-184-EP --------------------

Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

Buddy Ray Gunn, federal prisoner # 11525-080, appeals the

dismissal of his petition for a writ of audita querela seeking to

be resentenced as a non-career offender. He argues that the

district court erred in determining that his claim was procedurally

defaulted because he is actually innocent of the career offender

sentence. Gunn argues that in light of this court’s decision in

United States v. Bellazerius, 24 F.3d 698 (5th Cir. 1994), his

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. prior drug conspiracy conviction was improperly used to categorize

him as a career offender under U.S.S.G. § 4B1.1.

It is doubtful that Gunn can rely on the writ of audita

querela to obtain relief because he had other procedural vehicles

available in which to raise his claim under Bellazerius. See

United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993).

Even assuming that the writ is available to him, Gunn is not

entitled to relief because he has not demonstrated that he is

actually innocent of the offense that was used to support the

application of the career offender guideline. See Kinder v. Purdy,

222 F.3d 209, 211-13 (5th Cir. 2000); United States v. Williamson,

183 F.3d 458, 462 (5th Cir. 1999).

The dismissal of the writ is

AFFIRMED.