                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-18-2009

USA v. Orlando Sanchez
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3368




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Recommended Citation
"USA v. Orlando Sanchez" (2009). 2009 Decisions. Paper 1857.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1857


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HLD-36     (January 2009)                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-3368
                                      ___________

                            UNITED STATES OF AMERICA

                                            v.

                  ORLANDO SANCHEZ, a/k/a ORLANDO SARRIA,
                                               Appellant
                     ___________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                            (M.D. Pa. Crim. No. 92-cv-00319)
                     District Judge: Honorable William W. Caldwell
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    January 30, 2009
           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                                (filed: February 18, 2009)
                                         _________

                                       OPINION
                                       _________

PER CURIAM.

             Orlando Sanchez, a federal prisoner proceeding pro se, appeals an order of

the United States District Court for the Middle District of Pennsylvania denying his



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petition for a writ of error audita querela. We will affirm the District Court’s order.

               In 1993, Sanchez was convicted of conspiracy to distribute cocaine,

possession by a felon of a firearm, and using or carrying a firearm in relation to a drug

trafficking crime. Sanchez was sentenced to a term of 386 months in prison. In 1994, we

affirmed Sanchez’s conviction and sentence, and the United States Supreme Court denied

Sanchez’s petition for a writ of certiorari. In 2001, the District Court denied Sanchez’s

motion to vacate his sentence pursuant to 28 U.S.C. § 2255. We denied his request for a

certificate of appealability.

               In 2005, we affirmed the District Court’s denial of Sanchez’s motion

pursuant to 18 U.S.C. § 3582(c), in which he argued that he was entitled to a sentence

reduction under United States v. Booker, 543 U.S. 220 (2005). We explained that

Sanchez’s challenge to his sentence fell within the purview of a motion under § 2255, and

that our authorization was required to file a second or successive § 2255 motion. We

noted that Booker is not retroactively applicable to cases on collateral review.

               Sanchez then challenged his sentence under the All Writs Act, 28 U.S.C. §

1651, by filing a petition for a writ of audita querela in District Court. Relying on

Booker, Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542

U.S. 296 (2004), Sanchez argued that the sentencing court might have imposed a shorter

sentence if the court did not view the sentencing guidelines as mandatory, and that he was

punished for acts that were not found by a jury. The District Court denied Sanchez’s



                                              2
petition, and this appeal followed.

              The All Writs Act is a residual source of authority to issue writs that are not

otherwise covered by statute. Pennsylvania Bureau of Correction v. U.S. Marshals Serv.,

474 U.S. 34, 43 (1985). The common law writ of audita querela survives only to the

extent that it fills in gaps in the current system of post-conviction relief. United States v.

Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001). The District Court correctly held

that Sanchez may not invoke the writ of audita querela because his claims are cognizable

under § 2255. See United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (holding

that the writ of audita querela is unavailable where relief is cognizable under § 2255);

Valdez-Pacheco, 237 F.3d at 1079-80 (same).

              As recognized by the District Court, Sanchez may not avoid AEDPA’s

requirements for filing second or successive § 2255 motions by filing a petition for a writ

of audita querela. See United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir. 2000) (per

curiam) (stating that a prisoner may not resort to a writ of coram nobis when he cannot

meet the standards for filing a second or successive § 2255 motion). In addition, as noted

above, even if Sanchez did not need our authorization to file a § 2255 motion, he would

not succeed under § 2255 because Booker and Apprendi do not apply retroactively to

cases on collateral review. Lloyd v. United States, 407 F.3d 608, 616 (3d Cir. 2005);

United States v. Swinton, 333 F.3d 481, 491 (3d Cir. 2003).




                                               3
              Accordingly, because this appeal does not present a substantial question, we

will affirm the District Court’s order denying Sanchez’s petition for a writ of audita

querela.




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