BLD-141                                                          NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                        No. 12-1210
                                        ___________

                             UNITED STATES OF AMERICA

                                              v.

                                 WILSON A. GARCIA,
                                         Appellant
                        ____________________________________

                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                            (D.C. Crim. No. 04-cr-00662-002)
                       District Judge: Honorable Harvey Bartle III
                       ____________________________________

                         Submitted for Possible Summary Action
                    Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     March 15, 2012
                Before: SCIRICA, SMITH and CHAGARES, Circuit Judges

                               (Opinion filed: April 13, 2012)
                                         _________

                                         OPINION
                                         _________

PER CURIAM

         Wilson Garcia appeals the District Court’s order dismissing his petition for a writ

of audita querela. For the reasons below, we will summarily affirm the District Court’s

order.
       In 2005, Garcia was convicted of distribution of cocaine and distribution of

cocaine near a school in violation of 21 U.S.C. §§ 841(a)(1) and 860. Because Garcia

had a prior drug conviction, he faced a maximum sentence of life in prison and a

mandatory minimum of 120 months in prison. Garcia was subsequently sentenced to 120

months in prison. We affirmed his conviction and sentence on appeal. Garcia then filed

an unsuccessful motion pursuant to 28 U.S.C. § 2255.             This Court denied Garcia’s

request for a certificate of appealability.

       In December 2011, Garcia filed a petition for a writ of audita querela. He argued

that the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577

(2010), undermines the use of his prior conviction to enhance his sentence. The District

Court dismissed the petition without prejudice to Garcia requesting permission to file a

second or successive motion pursuant to 28 U.S.C. § 2255. Garcia filed a notice of

appeal.

       We have jurisdiction under 28 U.S.C. § 1291. The writ of audita querela is

available as residual post-conviction relief “to the extent that it fills in gaps in the current

system of post-conviction relief.” Massey v. United States, 581 F.3d 172, 174 (3d Cir.

2009). Thus, relief via a petition for a writ of audita querela is not available where a

specific statute addresses the issue at hand. Id. A motion pursuant to 28 U.S.C. § 2255 is

the proper vehicle for collaterally challenging a federal conviction or sentence. Id. The

restrictions in § 2255 on filing successive habeas motions do not create a gap which may

be filled by the writ of audita querela. Accordingly, the District Court did not err in

dismissing Garcia’s petition.

                                               2
       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6.




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