Alonzo v. United States ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7806
KENNI RAYMON ALONZO,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:09-cv-00745; 2:00-cr-00130-1)
Submitted: January 27, 2010 Decided: March 5, 2010
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenni Raymon Alonzo, Appellant Pro Se. Samuel D. Marsh,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenni Raymon Alonzo appeals the district court’s order
denying his petition for a writ of audita querela, in which he
alleged that the Government failed to file an information under
18 U.S.C. § 851 (2006) prior to sentencing him as a career
offender under U.S. Sentencing Guidelines Manual § 4B1.1 (2000).
We have reviewed the record and find no reversible error.
Although the district court addressed Alonzo’s claim
on the merits, we find that the petition was tantamount to a
successive, unauthorized motion under 28 U.S.C.A. § 2255 (West
Supp. 2009), over which the district court lacked jurisdiction. *
The fact that Alonzo 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.”); 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
*
Were this court to review the merits of Alonzo’s petition,
we would fully concur with the reasoning of the district court
and would affirm on that basis.
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motion to vacate sentence under 28 U.S.C.[A.] § 2255.” (internal
quotation marks omitted)).
Accordingly, we affirm the denial of relief. We
dispense with oral argument because 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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