United States v. Rafael Chavarry , 376 F. App'x 928 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 27, 2010
No. 09-13109 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-00302-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL CHAVARRY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 27, 2010)
Before BLACK, HULL and MARTIN, Circuit Judges.
PER CURIAM:
Rafael Chavarry, a federal prisoner proceeding pro se, appeals the district
court’s order denying his petition for a writ of error or a writ of audita querela,
brought pursuant to 28 U.S.C. § 1651. Chavarry contends his original conviction
of money laundering should be vacated because the Supreme Court’s decisions in
United States v. Santos, 128 S. Ct. 2020 (2008), and Regalado Cuellar v. United
States, 128 S. Ct. 1994 (2008), subsequently redefined the elements of money
laundering such that he was convicted based upon conduct that is no longer defined
as criminal. He further contends his original guilty plea has thus been rendered
involuntary by these cases. Broadly construing his pro se brief, Chavarry contends
the district court erred by failing to grant a writ of audita querela or a writ of
coram nobis to vacate his conviction.1
“We review de novo the question of whether a prisoner may challenge his
sentence by filing a motion for a writ of audita querela.” United States v. Holt,
417 F.3d 1172, 1174 (11th Cir. 2005). We review “a denial of coram nobis relief
for abuse of discretion.” Alikhani v. United States, 200 F.3d 732, 734 (11th Cir.
2000).
1
We do not treat Chavarry’s petition as a motion filed pursuant to § 2255 because any
such motion would be successive and Chavarry has not sought leave to file a successive petition
under 28 U.S.C. § 2255(h). See United States v. Garcia, 181 F.3d 1274, 1275 (11th Cir. 1999)
(deciding not to treat appellant’s petition for a writ of coram nobis as a motion pursuant to
§ 2255 when such motion would be considered successive).
2
The All Writs Act, 28 U.S.C. § 1651(a), grants federal courts the power to
issue “all writs necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” The Act, however, “does not
authorize [courts] to issue ad hoc writs whenever compliance with statutory
procedures appears inconvenient or less appropriate.” Pa. Bureau of Corr. v. U.S.
Marshals Serv., 106 S. Ct. 355, 361 (1985). In Holt, we held that a writ of audita
querela, “an ancient writ used to attack the enforcement of a judgment after it was
rendered,” can be granted only when relief is not “cognizable under § 2255.” Holt,
417 F.3d at 1174–75. Similarly, in Alikhani, we held that a writ of coram nobis,
another post-conviction writ, may only be issued when: (1) “there is and was no
other available avenue of relief”; and (2) “the error involves a matter of fact of the
most fundamental character which has not been put in issue or passed upon and
which renders the proceeding itself irregular and invalid.” Alikhani, 200 F.3d at
734 (quotation omitted).
We conclude that the district court did not err in denying Chavarry’s
petition. At the time he filed his petition, Chavarry was in custody and thus could
have collaterally attacked his conviction under 28 U.S.C. § 2255.2 In fact,
2
Although Chavarry was serving a sentence for an unrelated drug conviction, he also
faced a consecutive sentence of 15 months’ imprisonment for revocation of his supervised
release relating to his money laundering offense. For purposes of § 2255, Chavarry is
considered in custody for both offenses. See Garlotte v. Fordice, 115 S. Ct. 1948, 1949–50
3
Chavarry did raise identical claims in a prior § 2255 petition. Because Chavarry
was able to seek relief under § 2255, the district court did not err by holding that
the writs of audita querela and coram nobis were unavailable. Accordingly, we
affirm.
AFFIRMED.
(1995) (holding that a prisoner serving consecutive sentences is considered in custody under
each sentence); United States v. Woods, 127 F.3d 990, 992–93 (11th Cir. 1997) (holding that a
sentence imposed for revocation of supervised release “constitutes part of a defendant’s original
sentence”).
4