          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                December 3, 2009
                               No. 09-20028
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

JOSE HELI-MEJIA,

                                           Defendant-Appellant




                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:91-CR-176-4


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
      Jose Heli-Mejia, federal prisoner # 37528-004, was convicted in 1992 of
conspiring to distribute cocaine and is serving a 350-month term of
imprisonment. United States v. Cruz, 22 F.3d 96, 96-97 & n.1 (5th Cir. 1994)
(affirming conviction and sentence). Heli-Mejia has previously sought relief
unsuccessfully under 28 U.S.C. § 2255.




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 09-20028

      Heli-Mejia filed a petition for a writ of audita querela in the district court
challenging the legality of his sentence in light of United States v. Booker, 543
U.S. 220 (2005). The district court construed the petition as an unauthorized
successive motion under 28 U.S.C. § 2255. Because it lacked jurisdiction, the
district court denied the motion without prejudice.
      Heli-Mejia contends in this appeal that he should be permitted to assert
his Booker claim via a petition for a writ of audita querela because Booker was
decided after he was sentenced and is not retroactively applicable in the § 2255
context. Although the writ of audita querela “permits a defendant to obtain
relief against a judgment because of some legal defense arising after the
judgment,” United States v. Banda, 1 F.3d 354, 355 (5th Cir. 1993), a prisoner
may not seek a writ of audita querela if he “may seek redress under § 2255.” Id.;
see also Massey v. United States, 581 F.3d 172, 174 & n.2 (3d Cir. 2009). The fact
that a movant cannot meet the requirements for bringing a successive § 2255
motion does not render the § 2255 remedy unavailable. Tolliver v. Dobre, 211
F.3d 876, 878 (5th Cir. 2000). The district court’s order is
      AFFIRMED.




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