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

                                                 FILED
                                                                           August 31, 2009
                                     No. 08-20777
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

WENDELL ALBOYD CORNETT,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:00-CV-4308
                             USDC No. 4:95-CR-265-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Wendell Alboyd Cornett, federal prisoner # 04675-081, has moved for a
certificate of appealability (COA) in his appeal from the district court’s denial of
his petition for a writ of audita querela. Cornett sought the writ to challenge
sentences imposed in 1998 on offenses related to drug trafficking. Cornett has
also moved to proceed in forma pauperis (IFP) on appeal.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20777

      A COA is not required for Cornett to appeal the denial of a writ of audita
querela. See 28 U.S.C. § 2253(c). Accordingly, Cornett’s request for a COA is
denied as unnecessary.
      Cornett contends that his sentences, imposed prior to the decision in
United States v. Booker, 543 U.S. 220 (2005), violate the Fifth, Sixth, and Eighth
Amendments because the district court, rather than the jury, determined facts
that resulted in a sentence of life imprisonment. He asserts that, at the time of
his direct appeal, there was no existing legal basis to challenge the
constitutionality of the Sentencing Guidelines. Cornett, who has previously
litigated a 28 U.S.C. § 2255 motion, argues that he may pursue relief through
the writ of audita querela.
      The district court correctly denied Cornett’s petition for a writ of audita
querela because Cornett may pursue relief under 28 U.S.C. § 2255. See Tolliver
v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000); United States v. Banda, 1 F.3d 354,
356 (5th Cir. 1993). Cornett’s motion to proceed in forma pauperis is denied,and
the appeal is dismissed as frivolous. See 5 TH C IR. R. 42.2.
      COA DENIED AS UNNECESSARY; IFP DENIED; APPEAL DISMISSED.




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