                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7881


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MICHAEL SCOTT MCRAE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (5:97-cr-00094-H-6)


Submitted:    December 17, 2009            Decided:   December 31, 2009


Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael Scott McRae, Appellant Pro Se.     Rudolf A. Renfer, Jr.,
Robert Edward    Skiver,   Assistant   United  States  Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Michael Scott McRae appeals the district court’s order

denying his petition for a writ of audita querela on the ground

that United States v. Booker, 543 U.S. 220 (2005), did not apply

retroactively to his case.               We have reviewed the record and find

no    reversible     error.        Although        the    district       court       addressed

McRae’s   claim      on    the    merits,     we    find       that    the    petition       was

tantamount to a successive motion under 28 U.S.C.A. § 2255 (West

Supp. 2009), over which the district court lacked jurisdiction.

The    fact   that    McRae       cannot    proceed        under       § 2255       unless   he

obtains    authorization          from     this    court        to    file    a     successive

motion does not alter our conclusion.                      See Carrington v. United

States,   503    F.3d      888,    890   (9th      Cir.       2007)    (“[T]he       statutory

limits on second or successive habeas petitions do not create a

‘gap’ in the post-conviction landscape that can be filled with

the common law writs.”), opinion amended on other grounds on

denial of reh’g, 530 F.3d 1183 (9th Cir. 2008); United States v.

Torres,   282    F.3d      1241,    1245    (10th        Cir.    2002)       (“[A]    writ    of

audita    querela     is    not     available       to    a     petitioner        when   other

remedies exist, such as a motion to vacate sentence under 28

U.S.C.[A.]      § 2255.”)         (internal       quotation          marks    and    citation

omitted).      Accordingly, we affirm the denial of relief.                           We deny

McRae’s motions for appointment of counsel and for a transcript

at government expense.              We dispense with oral argument because

                                              2
the facts and legal contentions are adequately presented in the

materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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