                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                May 12, 2009
                               No. 08-15918                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D. C. Docket Nos. 08-61507-CV-WPD
                              91-00413-CR-WPD


NARCISCO F. SUAREZ,

                                                              Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                 (May 12, 2009)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Narciso F. Suarez, a federal prisoner proceeding pro se, appeals the denial of
his petition for a writ of audita querela. He contends that the district court erred in

denying the petition because his sentence is unconstitutional under Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and United States v. Booker,

543 U.S. 220, 125 S. Ct. 738 (2005).

      “We review de novo the question of whether a prisoner may challenge his

sentence by filing a motion for a writ of audita querela.” United States v. Holt, 417

F.3d 1172, 1174 (11th Cir. 2005).

      Audita querela is “an ancient writ used to attack the enforcement of a

judgment after it was rendered.” Id. Suarez contends that a writ of audita querela

is the proper avenue for relief because his sentence was correct when it was

rendered but later became unconstitutional after Booker because the sentencing

guidelines are no longer mandatory. Although we have noted that “federal courts

may properly fill the interstices of the federal postconviction remedial framework

through remedies available at common law,” id. at 1175 (quotation omitted), a writ

of audita querela may not be granted where the “relief [sought] is cognizable under

[28 U.S.C.] § 2255.” Id. Here the relief that Suarez seeks—vacating his sentence

as unconstitutional—falls within the scope of § 2255.1 Therefore, Suarez cannot


      1
          Section 2255 provides, in relevant part:

      A prisoner in custody under sentence of a court established by Act of Congress claiming
      the right to be released upon the ground that the sentence was imposed in violation of the

                                                 2
seek relief from his sentence under a writ of audita querela. The district court

properly denied his motion.2

       AFFIRMED.




       Constitution . . . or that the sentence was in excess of the maximum authorized by
       law . . . may move the court which imposed the sentence to vacate, set aside or correct
       the sentence.

28 U.S.C. § 2255(a).
       2
          Because Suarez is proceeding pro se, we looked beyond the label of his motion to
determine whether his claim is cognizable under another statutory framework. See United States
v. Jordan, 915 F.2d 622, 624–25 (11th Cir. 1990). The only applicable alternative statutory
framework here would be § 2255. Suarez, however, has specifically requested that we not
consider his motion under § 2255 and we will honor that request. Regardless, Suarez’s claim
would fail under § 2255 because Booker and Apprendi are not retroactively applicable in that
context. See Valera v. United States, 400 F.3d 864, 868 (11th Cir. 2005); McCoy v. United
States, 266 F.3d 1245, 1258 (11th Cir. 2001).

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