The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Defendant's Petition for Writ of Error Audita Querela Title 28 U.S.C. § 1651 (Dkt. 139). Having reviewed the Petition and the underlying record, the Court enters the following Order denying the Petition.
Defendant was convicted by a jury of conspiracy to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine. (Verdict Dkt. 67.) A Presentence Report was prepared to which Defendant lodged objections to the drug quantity, role in the offense enhancement, criminal history category, and denial of an adjustment for acceptance of responsibility. (Objections Dkt. 68.) The Court overruled the objections and imposed a sentence of 360 months to be followed by five years of supervised release. (MinutesDkt. 70.) Judgment was entered on June 24, 2002. (Judgment Dkt. 71.)
Defendant timely appealed. However, due to apparent difficulties in obtaining transcripts, the opening brief was not filed until March 3, 2005. By that time, the Supreme Court had issued its decision in United States v. Booker, 543 U.S. 220 (2005). Booker effectively rendered the formerly mandatory United States Sentencing Guidelines advisory thus permitting the sentencing court to consider facts beyond those found by a jury or admitted by a defendant without violating the Sixth Amendment.
The appellate proceedings were stayed pending disposition of United States v. Ameline in which the Ninth Circuit was considering the effect of Booker on pending appeals in which Booker errors had not been preserved. (USCA Order Dkt. 85.) On December 15, 2005, the Ninth Circuit affirmed the judgment of the Court but remanded for possible resentencing under the procedures set forth in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005). (USCA Judgment Dkt. 89.)
The Court followed the directives of Ameline soliciting comments of counsel on the issue of whether resentencing was warranted in light of Booker. (OrderDkt. 90.) After reviewing the parties' submissions, the Court determined that it would not have imposed a materially different sentence had the guidelines been advisory. (Order Dkt. 122.) Defendant appealed, and the Ninth Circuit affirmed the Court's decision. (USCA Mem. Dkt. 137.) A review of the Ninth Circuit docket (Case No. 06-30383) indicates that Defendant filed a petition for a writ of certiorari which was denied by the Supreme Court on December 8, 2008. Defendant filed the pending Petition on July 6, 2010.
Defendant essentially claims that the post-sentencing decision in Booker rendered his sentence invalid. The main thrust of his Petition is that his sentence and conviction are unconstitutional because the Court found the facts supporting the drug quantity and enhancements by a preponderance of evidence when they should have been found by a jury beyond a reasonable doubt. The challenge to his sentence is one typically considered in proceedings pursuant to 28 U.S.C. § 2255.
1. Writ of Audita Querela
"Audita querela, literally 'the complaint having been heard,' is a common law writ used to attack a judgment that was correct when rendered, but that later became incorrect because of circumstances that arose after the judgment was issued." Carrington v. United States, 503 F.3d 888, 890 n.2 (9th Cir. 2007). Stated another way, it was a writ used to grant relief to a judgment debtor against a judgment where a defense or discharge arose after the judgment. United States v. Hovsepian, 307 F.3d 922, 928 (9th Cir. 2002). However, it "is not a wand which may be waved over an otherwise valid criminal conviction. . . ." United States v. Johnson, 962 F.2d 579, 582 (7th Cir. 1992).
The 1946 amendments to Federal Rule of Civil Procedure 60(b) abolished the writ of audita querela along with other common law writs. Hovsepian, 307 F.3d at 928.
However, the abolition applies to civil cases only. Id. It is available in criminal cases, but ...