     Case: 11-10387     Document: 00511607363         Page: 1     Date Filed: 09/20/2011




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

                                                                            FILED
                                                                        September 20, 2011
                                     No. 11-10387
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

GEORGE WHITEHEAD, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:07-CR-11-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Proceeding pro se and in forma pauperis, George Whitehead, Jr., federal
prisoner # 35653-177, appeals from the district court’s denial of his motion to
vacate his convictions for possession of a controlled substance with intent to
distribute and being a felon in possession of a firearm. Whitehead contends he
should have been granted a writ of audita querela pursuant to the All Writs Act,
28 U.S.C. § 1651, because he did not discover his claimed double-jeopardy
violation until after he had sought relief under 28 U.S.C. § 2255.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10387    Document: 00511607363     Page: 2   Date Filed: 09/20/2011

                                No. 11-10387

      The question whether a prisoner may challenge his sentence via a writ of
audita querela is reviewed de novo.       E.g., Ctr. for Individual Freedom v.
Carmouche, 449 F.3d 655, 662 (5th Cir. 2006) (questions of law reviewed de
novo); United States v. Holt, 417 F.3d 1172, 1174 (11th Cir. 2005) (per curiam)
(“We review de novo the question of whether a prisoner may challenge his
sentence by filing a motion for a writ of audita querela.”). The writ is not
available if the objection can be brought pursuant to any other post-conviction
remedy. United States v. Miller, 599 F.3d 484, 488 (5th Cir. 2010). Thus, the
writ is not available when the prisoner may seek redress under § 2255. United
States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). Neither a prior unsuccessful
§ 2255 motion nor an inability to meet the requirements for pursuing a
successive § 2255 motion renders the § 2255 remedy unavailable. Tolliver v.
Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
      AFFIRMED.




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