United States v. McRae , 359 F. App'x 399 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7881
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SCOTT MCRAE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:97-cr-00094-H-6)
Submitted: December 17, 2009 Decided: December 31, 2009
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Scott McRae, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Robert Edward Skiver, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Scott McRae appeals the district court’s order
denying his petition for a writ of audita querela on the ground
that United States v. Booker, 543 U.S. 220 (2005), did not apply
retroactively to his case. We have reviewed the record and find
no reversible error. Although the district court addressed
McRae’s claim on the merits, we find that the petition was
tantamount to a successive motion under 28 U.S.C.A. § 2255 (West
Supp. 2009), over which the district court lacked jurisdiction.
The fact that McRae cannot proceed under § 2255 unless he
obtains authorization from this court to file a successive
motion does not alter our conclusion. See Carrington v. United
States, 503 F.3d 888, 890 (9th Cir. 2007) (“[T]he statutory
limits on second or successive habeas petitions do not create a
‘gap’ in the post-conviction landscape that can be filled with
the common law writs.”), opinion amended on other grounds on
denial of reh’g, 530 F.3d 1183 (9th Cir. 2008); United States v.
Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (“[A] writ of
audita querela is not available to a petitioner when other
remedies exist, such as a motion to vacate sentence under 28
U.S.C.[A.] § 2255.”) (internal quotation marks and citation
omitted). Accordingly, we affirm the denial of relief. We deny
McRae’s motions for appointment of counsel and for a transcript
at government expense. We dispense with oral argument because
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the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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