                                                                             FILED
                            NOT FOR PUBLICATION                               AUG 05 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-30305

               Plaintiff - Appellee,              D.C. No. 1:00-cr-00033-BLW

  v.
                                                  MEMORANDUM *
MARTIN CHAVEZ-CUEVAS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                     B. Lynn Winmill, Chief Judge, Presiding

                             Submitted August 2, 2011 **

Before:        RYMER, IKUTA, and N.R. SMITH, Circuit Judges.

       Federal prisoner Martin Chavez-Cuevas appeals pro se from the district

court’s denial of his petition for a writ of audita querela pursuant to 28 U.S.C.

§ 1651. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Chavez-Cuevas contends that the district court erred in concluding that a

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
writ of audita querela was unavailable to him. He argues that the writ is available

here because it is the only means for him to obtain the relief to which he claims he

is entitled under United States v. Booker, 543 U.S. 220 (2005).

      “[A] federal prisoner may not challenge his or her sentence pursuant to a

petition for a writ of audita querela if the requested relief can be obtained under

[28 U.S.C.] § 2255.” United States v. Gamboa, 608 F.3d 492, 492 (9th Cir. 2010).

Because Chavez-Cuevas’s challenge to the legality of his sentence is cognizable

under section 2255, the instant petition was properly denied.

      The fact that a section 2255 motion may have been untimely does not make

the writ of audita querela available to Chavez-Cuevas. See United States v. Valdez-

Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001) (per curiam) (“A prisoner may not

circumvent valid congressional limitations on collateral attacks by asserting that

those very limitations create a gap in the postconviction remedies that must be

filled by the common law writs.”). Likewise, any impediment to seeking section

2255 relief caused by the timing of the Booker decision is insufficient grounds to

invoke the writ. See Gamboa, 608 F.3d at 494-95. In any event, Booker was

decided before Chavez-Cuevas’s conviction became final, and he was permitted to

seek resentencing pursuant to that decision.

      AFFIRMED.


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