United States v. Mason

131 F. App'x 440

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 13, 2005
• Docket: 04-30855
• Status: Unpublished

Opinion

PER CURIAM: *

Alfonzo Mason, federal prisoner # 10614-035, appeals the district court’s denial of his motion for a writ of audita querela wherein he sought to challenge his sentence for conspiracy to possess cocaine base with intent to distribute. Relying upon Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Mason argues that the district court improperly enhanced his sentence based upon facts to which he did not plead guilty and that were not determined by a jury, in violation of his Fifth and Sixth Amendment rights. In addition, Mason argues that the actual innocence exception to the procedural default doctrine allows him to pursue the writ.

The writ of audita querela is not available where the prisoner may pursue a remedy under 28 U.S.C. § 2255. United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). The fact that the movant cannot meet the requirements for bringing a successive 28 U.S.C. § 2255 motion does not render the 28 U.S.C. § 2255 remedy unavailable. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir.2000).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.