United States v. Diggs

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 19, 2008
No. 07-10743
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CEDRICK DIGGS
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CR-177-1
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Cedrick Diggs, federal prisoner # 27072-177, appeals the district court’s
denial of his request for a writ of audita querela challenging his sentences for
conspiracy to obstruct interstate commerce by robbery and using and carrying
a firearm during a crime of violence. Diggs argues that the sentences imposed
for his crimes were too harsh and that the sentences violated his constitutional
rights.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-10743
Regardless of the label affixed to Diggs’s motion, it was a collateral
challenge to the sentences imposed by the district court and therefore fell within
the purview of 28 U.S.C. § 2255. See United States v. Banda, 1 F.3d 354, 356
(5th Cir. 1993); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131-32 (5th Cir.
1987). Therefore, audita querela was not the proper vehicle for Diggs’s claims.
See Banda, 1 F.3d at 356.
Diggs has previously filed a § 2255 motion. His present motion was
successive, and he was required to obtain this court’s authorization to file it. See
28 U.S.C. §§ 2244(b)(3), 2255(h). Because he did not do so, the district court
properly denied his motion. As Diggs’s appeal is without arguable merit, see
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983), it is dismissed as
frivolous. See id.; 5TH CIR. R. 42.2.
APPEAL DISMISSED.
2