     Case: 10-11108     Document: 00511600611         Page: 1     Date Filed: 09/13/2011




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

                                                                            FILED
                                                                        September 13, 2011
                                     No. 10-11108
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JUAN JACKSON,

                                                  Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CV-1745


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Juan Jackson, federal prisoner # 95377-012, was convicted by a jury of
aiding and abetting kidnaping in violation of 18 U.S.C. §§ 1201(a)(1) and 2
(counts two and three) and unlawfully carrying and using a firearm during the
commission of a crime in violation of 18 U.S.C. § 924(c) (count four). He was
sentenced to life imprisonment on counts two and three, to be served
concurrently, and 60 months of imprisonment on count four, to be served
consecutively to the sentences for counts two and three. Jackson seeks leave to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-11108   Document: 00511600611      Page: 2   Date Filed: 09/13/2011

                                  No. 10-11108

proceed in forma pauperis (IFP) on appeal from the district court’s denial of his
petition for writ of audita querela challenging his sentence in view of United
States v. Booker, 543 U.S. 220 (2005).
      By moving for leave to proceed IFP on appeal, Jackson is challenging the
district court’s certification that his appeal presents no nonfrivolous issues and
is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Jackson argues that the writ of audita querela is available because
Booker established a new rule of constitutional law that was unforeseeable at the
time of his sentencing, appeal, and habeas petition. He contends that United
States v. Gentry, 432 F.3d 600, 605 (5th Cir. 2005), is inapplicable because he
filed a motion to reopen his criminal case pursuant to a writ of audita querela,
and not under § 2255. He contends that Booker should be applied retroactively
under Teague v. Lane, 489 U.S. 288 (1989).
      Jackson cannot assert this claim in a petition for writ of audita querela
because redress is available under § 2255. See United States v. Banda, 1 F.3d
354, 356 (5th Cir. 1993). Jackson’s inability to meet the requirements for
bringing a successive § 2255 motion does not render the § 2255 remedy
unavailable. See Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). Jackson’s
appeal is without arguable merit and is thus frivolous. See Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). Accordingly, Jackson’s request for leave to
proceed IFP is denied, and the appeal is dismissed. See 5TH CIR. R. 42.2.
      IFP MOTION DENIED; APPEAL DISMISSED.




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