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

                                                                            FILED
                                                                           July 21, 2008
                                     No. 07-10898
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

JAMES HOWARD HANEY

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:92-CR-61-3


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       James Howard Haney, federal prisoner # 22122-077, pleaded guilty to
possession of methamphetamine with intent to distribute and was sentenced as
a career offender to 360 months in prison. He appeals the district court’s denial
of his petition for a writ of audita querela, pursuant to 28 U.S.C. § 1651(a), in
which he asserted that the district court wrongly found him to be a career
offender under the Sentencing Guidelines in light of United States v. Cheramie,
51 F.3d 538 (5th Cir. 1995). Haney has not established that his Cheramie claim

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-10898

constitutes a “gap” in the federal postconviction structure warranting the
extraordinary writ. See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993);
United States v. Reyes, 945 F.2d 862, 865 & n.5 (5th Cir. 1991); see also Kinder
v. Purdy, 222 F.3d 209, 211-14 (5th Cir. 2000). The judgment of the district
court is AFFIRMED.
      Haney also asks this court to recall the mandate on his direct appeal so
that he may raise his Cheramie claim. Because Haney did not argue on direct
appeal that his underlying conspiracy conviction cannot serve as a predicate
offense for a career offender finding under the Guidelines, he is not entitled to
a recall of the mandate. See In re Kunkle, 398 F.3d 683, 685 n.2 (5th Cir. 2005).
Haney’s motion is thus DENIED. Haney’s motion for appointment of counsel is
likewise DENIED.




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