United States v. Edwin Rodriguez , 446 F. App'x 439 ( 2011 )

DLD-300 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3065
___________
UNITED STATES OF AMERICA,
v.
EDWIN RODRIGUEZ,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 94-cr-00192)
District Judge: Honorable Lawrence F. Stengel
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
September 29, 2011
Before: FISHER, BARRY and VAN ANTWERPEN, Circuit Judges
(Filed: October 5, 2011)
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OPINION
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PER CURIAM
Edwin Rodriguez, a pro se inmate, appeals the order of the District Court denying
his petition for a writ of audita querela. Because we conclude that this appeal presents no
substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
Following a 1996 jury trial in the United States District Court for the Eastern
District of Pennsylvania, Edwin Rodriguez was convicted of conspiracy to distribute
cocaine and was sentenced as a career offender to 360 months in prison. This Court
affirmed. See United States v. Rodriguez, 168 F.3d 480 (Table) (3d Cir. 1998) (No. 97-
1937). Rodriguez then filed a motion to vacate his sentence under 28 U.S.C. § 2255,
which the District Court denied after conducting an evidentiary hearing. We denied his
request for a certificate of appealability. (C.A. No. 01-3908.)
Rodriguez has filed several additional post-conviction motions, including two
applications pursuant to 28 U.S.C. § 2244 to file a successive § 2255 motion, all of which
have been unsuccessful. On December 14, 2010, he filed a petition for a writ of audita
querela under the All Writs Act, 28 U.S.C. § 1651, in the District Court, claiming that he
was entitled to resentencing under United States v. Booker, 543 U.S. 220 (2005). The
District Court denied the motion on July 12, 2011. Rodriguez filed a timely notice of
appeal.
We have jurisdiction under 28 U.S.C. § 1291. Our review of a district court’s
order granting or denying a petition for a writ of audita querela is plenary. See United
States v. Gamboa, 608 F.3d 492, 494 (9th Cir. 2010); cf. Grider v. Keystone Health Plan
Cent., Inc., 500 F.3d 322, 328 (3d Cir. 2007) (exercising plenary review of injunctions
under All Writs Act).
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We agree with the District Court’s conclusion that Rodriguez may not seek
sentencing relief though a petition for a writ of audita querela. “Where a statute
specifically addresses the particular issue at hand, it is that authority, and not the All
Writs Act, that is controlling.” Massey v. United States, 581 F.3d 172, 174 (3d Cir.
2009) (internal quotation omitted). A motion pursuant to 28 U.S.C. § 2255 is the proper
avenue to challenge his sentence. Id. We note that Rodriguez has already filed one such
motion, which was unsuccessful, as well as two unsuccessful applications pursuant to 28
U.S.C. § 2244 for authorization to file a successive § 2255 motion. Nevertheless,
Rodriguez “may not seek relief through a petition for a writ of audita querela on the basis
of his inability to satisfy the requirements of the Antiterrorism and Effective Death
Penalty Act of 1996.” Id.
Because the appeal does not present a substantial question, we will summarily
affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
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