     Case: 10-50177     Document: 00511233937          Page: 1    Date Filed: 09/15/2010




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

                                                 FILED
                                                                        September 15, 2010
                                     No. 10-50177
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSEPH LEON PLUMMER,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:05-CR-218-1


Before BENAVIDES, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        Joseph Leon Plummer, federal prisoner # 69035-080, was convicted of
possession of a firearm by a convicted felon (Count One) and possession of an
unregistered firearm (Count Two). The district court sentenced him to 300
months in prison on Count One and 120 months on Count Two with the
sentences to run concurrently.           Plummer seeks leave to proceed in forma
pauperis (IFP) on appeal from the district court’s denial of his petition for writ



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50177    Document: 00511233937 Page: 2        Date Filed: 09/15/2010
                                 No. 10-50177

of audita querela challenging his sentence in light of United States v. Rodriquez,
553 U.S. 377 (2008), and U.S.S.G. § 4B1.2, cmt. (n.1).
      By moving for leave to proceed IFP on appeal, Plummer is challenging the
district court’s certification that his appeal presents no nonfrivolous issues and
is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Plummer argues that two of the prior convictions used to enhance his
sentence did not meet the criteria outlined in Rodriquez and § 4B1.2, cmt. (n.1)
and, as a result, he is entitled to relief in the form of a writ of audita querela.
“The writ of audita querela permits a defendant to obtain relief against a
judgment because of some legal defense arising after the judgment.” United
States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). A prisoner may not seek a writ
of audita querela if he “may seek redress under § 2255.” Id.
      Plummer cannot assert this claim in a petition for writ of audita querela
because redress is available under § 2255. See id. Moreover, even if Plummer
is entitled to raise this claim in a petition for writ of audita querela, the claim
is unavailing. Plummer’s appeal is without arguable merit and is thus frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).             Accordingly,
Plummer’s request for leave to proceed IFP is denied, and the appeal is
dismissed. See 5 TH C IR. R. 42.2.
      IFP DENIED. APPEAL DISMISSED.




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