United States v. Michael Steven Foster

Case: 17-12193 Date Filed: 02/28/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12193
Non-Argument Calendar
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D.C. Docket No. 3:05-cr-00135-LC-EMT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL STEVEN FOSTER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(February 28, 2018)
Before WILLIAM PRYOR, JULIE CARNES, and HULL, Circuit Judges.
PER CURIAM:
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Michael Foster, a federal prisoner, appeals pro se the denial of his petition
for a writ of audita querela. We affirm.
In 2006, Foster pleaded guilty to 13 counts of aggravated sexual abuse of a
child less than 12, 18 U.S.C. § 2241(c), and 28 counts of sexually abusing a minor,
id. § 2243(a). Foster failed to object to his presentence investigation report, which
grouped his offenses and provided an advisory guideline range of 235 to 293
months and the statutory maximum penalties of life imprisonment for each count
of aggravated abuse and of 180 months for each count of sexual abuse. The district
court sentenced Foster to the maximum penalty for each of his crimes and ordered
that his sentences run concurrently. The district court stated that Foster’s guideline
range failed to account for the daily abuse he had inflicted on his daughter and the
trauma she had sustained and that a long sentence was required to protect the
public and to deter Foster from future similar crimes. On appeal, Foster challenged
the substantive reasonableness of his sentence, and we affirmed. United States v.
Foster, 209 F. App’x 942 (11th Cir. 2006).
In 2016, Foster filed a petition for a writ of habeas corpus under the All
Writs Act, 28 U.S.C. § 1651(a), but after receiving a warning that his petition
would be reclassified as a motion to vacate, he amended his petition to request a
writ of audita querela, see Castro v. United States, 540 U.S. 375 (2003). Foster
argued that the district court miscalculated his sentence by applying the 2005
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edition of the Sentencing Guidelines to those offenses that he committed between
2002 and 2004 and that relief was available based on the recent decision in
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016). Foster also argued that
the district court violated his right against double jeopardy by imposing multiple
sentences for one continuous course of conduct. And Foster argued that the district
court violated his right to due process by preventing him from presenting evidence
of his post-traumatic stress disorder and by enhancing his sentence based on his
need for treatment and counseling.
The district court denied Foster’s petition. The district court ruled that the
writ of audita querela was unavailable to Foster because he could challenge the use
of an incorrect guideline range in a motion to vacate, 28 U.S.C. § 2255. The
district court also ruled that the writ of audita querela was unavailable for Foster to
challenge his convictions on grounds that he could have raised in a timely motion
to vacate.
The district court did not err by denying Foster’s petition for a writ of audita
querela. The All Writs Act grants federal courts the power to issue writs
“necessary or appropriate in aid of their respective jurisdictions and agreeable to
the usages and principles of law,” 28 U.S.C. § 1651(a), but “[w]here a statute
specifically addresses the particular issue at hand, it is that authority, and not the
All Writs Act, that is controlling,” Pa. Bureau of Corr. v. U.S. Marshals Serv., 474
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U.S. 34, 43 (1985). Section 2255 provides the exclusive remedy for Foster to
collaterally attack his sentence. See 28 U.S.C. § 2255. The district court could not
grant Foster “a writ of audita querela . . . when relief [was] cognizable under
§ 2255.” United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).
We AFFIRM the denial of Foster’s petition for a writ of audita querela.
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