     Case: 12-20768       Document: 00512316943           Page: 1    Date Filed: 07/23/2013




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

                                                                              FILED
                                                                             July 23, 2013
                                     No. 12-20768
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE BERNARDO NIETO, also known as Bono,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:92-CR-111-2


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Convicted drug-trafficker Jose Bernardo Nieto, federal prisoner # 58136-
079, appeals the district court’s order denying his petition for a writ of audita
querela, wherein he sought to raise the claim that the sentencing court in 1993
erroneously assessed a four-level leadership-role enhancement, pursuant to
U.S.S.G. § 3B1.1. He urged that he was entitled to proceed because new,
previously undiscoverable facts showed that he was not a leader or organizer

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-20768    Document: 00512316943     Page: 2   Date Filed: 07/23/2013

                                 No. 12-20768

but only a “transporter” of drugs and because no other relief is available to
correct the sentencing error. The Government moves for dismissal, asserting
that Nieto’s petition is unauthorized because redress is available under 28
U.S.C. § 2255. It alternatively seeks summary affirmance or an extension of
time to file an appellate brief. Nieto opposes the Government’s motion.
      Even if it is assumed that the writ of audita querela survives as a post-
conviction remedy, Nieto is not entitled to proceed because he can seek redress
under § 2255. See United States v. Miller, 599 F.3d 484, 487 (5th Cir. 2010);
United States v. Banda, 1 F.3d 354, 355 (5th Cir. 1993). Alternatively, even
assuming that Nieto can raise his guidelines-error claim in a petition for audita
querela, the claim lacks merit. His conclusional assertions notwithstanding,
Nieto does not present a new legal defense or demonstrate any legal defect in
his judgment. See Banda, 1 F.3d at 356.
      Accordingly, the district court’s judgment is affirmed. The motion to
dismiss is denied. The motion for summary affirmance is likewise denied. See
United States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir.
2006). As the appeal can be decided without further briefing, in the interest of
judicial economy, the motion for an extension of time is also denied.
      JUDGMENT AFFIRMED; MOTIONS DENIED.




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