            Case: 19-11954    Date Filed: 12/16/2019   Page: 1 of 4


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11954
                         Non-Argument Calendar
                       ________________________

        D.C. Docket Nos. 1:19-cv-20133-KAM; 1:97-cr-00257-KAM-1



PABLO EMILIANO SUESCUN,

                                                          Petitioner - Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                         Respondent - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (December 16, 2019)

Before ED CARNES, Chief Judge, HULL, and MARCUS, Circuit Judges.

PER CURIAM:
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       Pablo Emiliano Suescun, a pro se litigant, was convicted of a variety of drug

offenses in 1998. He was sentenced to life in prison. His conviction was upheld

on direct appeal, and in 2002 the district court denied his 28 U.S.C. § 2255 motion

to vacate, set aside, or correct his sentence.1

       Suescun now moves to reduce his sentence using a writ of audita querela.

Audita querela is an ancient, common law writ that allows a defendant to attack the

execution of a judgment based on a defense that arose after the judgment was

entered. United States v. Holt, 417 F.3d 1172, 1174 (11th Cir. 2005). Under the

All Writs Act, federal prisoners may sometimes use common law writs to attack

their convictions. Id. But courts cannot grant relief under common law writs if

“relief is cognizable under § 2255.” Id. at 1175.

       Suescun contends that he should be resentenced because his sentencing and

§ 2255 motion were both decided under the guidelines before United States v.

Booker, 543 U.S. 220 (2005), when the guidelines were considered mandatory.

But Booker does not apply retroactively to cases on collateral review. Varela v.

United States, 400 F.3d 864, 868 (11th Cir. 2005). Suescun attempts to get around

that problem by using the audita querela writ. He argues that because Booker is




       1
         In 2016 he moved to reduce his sentence under an amendment to the sentencing
guidelines, and it was adjusted from life to 480 months in prison. That motion is not at issue
here.
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not retroactive, relief is not cognizable under § 2255. And because relief is not

cognizable under § 2255, the court can grant him relief using the writ.

      The magistrate judge found that, because Suescun was attacking the

constitutionality of his sentence, his motion for an audita querela writ was properly

construed as a second or successive motion under § 2255, and he had not obtained

authorization from this court to file it. As a result, the magistrate judge

recommended dismissing his motion. Suescun objected to that recommendation,

but the district court adopted it and dismissed the motion.

      “We review de novo the question of whether a prisoner may challenge his

sentence by filing a motion for a writ of audita querela.” Holt, 417 F.3d at 1174.

We also review de novo a district court’s dismissal for lack of jurisdiction. United

States v. Oliver, 148 F.3d 1274, 1275 (11th Cir. 1998).

      On appeal, Suescun contends that the district court was wrong to

characterize his filing as a § 2255 motion and that he is entitled to relief under the

writ. Suescun’s arguments are barred by the Holt decision. Holt also contended

that he should be able to attack his sentence using a writ of audita querela. Holt,

417 F.3d at 1173. He argued that the court made a post-verdict factual finding that

was unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004), a case

that was decided after his sentencing. Holt, 417 F.3d at 1173. Under Holt’s




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theory, because Blakely did not apply retroactively, § 2255 was unavailable to

him; and the writ was a proper way to assert his Blakely defense. Id. at 1174.

        We disagreed. It did not matter that Blakely didn’t apply retroactively. We

held that because Holt was “collaterally attacking his sentence as violating the

United States Constitution,” his claim was cognizable under § 2255. Id. at 1175.

        So too here. Suescun is collaterally attacking his sentence as

unconstitutional under Booker. That claim should be brought under § 2255. He

cannot avoid the retroactivity ban on Booker arguments by invoking an ancient

writ.

        The district court correctly construed Suescun’s filing as a § 2255 motion.

See Castro v. United States, 540 U.S. 375, 381 (2003) (holding that federal courts

may “ignore the legal label that a pro se litigant attaches to a motion and

recharacterize the motion in order to place it within a different legal category”).

And it properly dismissed Suescun’s motion because he had previously filed a

§ 2255 motion and had not received permission from this Court to file a second.

See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003).

        AFFIRMED.




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