                                                                           FILED
                            NOT FOR PUBLICATION                             APR 02 2013

                                                                        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. 12-35113

               Plaintiff - Appellee,             DC No. 3:98 cr-0056 MA

  v.
                                                 MEMORANDUM *
JESUS JOSE PEREZ ANDRADE, AKA
Jorge Bravo-Bravo,

               Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Oregon
                 Malcolm F. Marsh, Senior District Judge, Presiding

                              Submitted March 7, 2013 **
                                  Portland, Oregon

Before:        TASHIMA, CLIFTON, and BEA, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      Defendant-Appellant Jorge Bravo-Bravo (a/k/a Jesus Andradé-Perez)1

appeals the district court’s denial of his petition for a writ of audita querela, or in

the alternative, a writ of coram nobis. Appellant seeks to vacate his 1998

conviction for possession with intent to distribute methamphetamine, for which he

has already completed the sentence. He contends that he is entitled to relief

because his sentencing guidelines for the 1998 conviction were based, in part, on a

1995 state court conviction for conspiracy to possess cocaine for sale. In 2010, a

California court vacated the 1995 conviction and, in its place, entered a conviction

for the lesser charge of mere possession of a controlled substance.

      We review de novo a district court’s denial of a petition for a writ of audita

querela or coram nobis. See United States v. Hovsepian, 359 F.3d 1144, 1153 (9th

Cir. 2004) (en banc); Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir.

2002). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     A party seeking a writ of audita querela must demonstrate “a legal

defect in the conviction, or in the sentence which taints the conviction.” Doe v.

INS, 120 F.3d 200, 203 (9th Cir. 1997) (internal quotation marks omitted). Here,



      1
             In the case caption, Appellant appears as Jesus Jose Perez-Andrade,
but in his submissions on appeal, Appellant represents that his name is Jorge
Bravo-Bravo and that his alias is Jesus Andrade-Perez. We refer to him simply as
“Appellant.”

                                           -2-
Appellant has not demonstrated a sufficient possibility of prejudice to justify

issuance of the writ. Appellant almost certainly would have received the same

sentence on the 1998 conviction even had the 1995 conviction been as it stands

today.

         Appellant received three criminal history points for the original 1995

conviction, which led to an aggregate criminal history score of nine. Had the new

1995 conviction been in place, he would have received only two criminal history

points because the sentence for the new conviction was less than one year and one

month. See U.S.S.G. § 4A1.1(a)-(b) (1998). However, his aggregate criminal

history score would have been eight, which would have produced the same

criminal history category of IV and an identical guidelines range of 84-105

months. See id. § 5A. The fact that, in calculating Appellant’s sentence in 1998,

the district court actually lowered Appellant’s criminal history category from IV to

III, and sentenced him to the low end of the resulting guidelines range, only further

diminishes the possibility that the outcome would have been different.

         Even if Appellant would have received a lesser sentence on the 1998

conviction, there is little possibility that the continued existence of the original

sentence could adversely impact him in the future. Appellant faced a mandatory

minimum sentence on the 1998 conviction of 60 months. If he had received the


                                           -3-
mandatory minimum rather than the 70 months he did receive, he would still earn

three criminal history points for the 1998 conviction in calculating his sentencing

guidelines for any subsequent offense, including his 2012 conviction on a charge

of illegal re-entry. See U.S.S.G. § 4A1.1(a) (2012).

      2.     To warrant coram nobis relief, a petitioner must demonstrate that: “(1)

a more usual remedy is not available; (2) valid reasons exist for not attacking the

conviction earlier; (3) adverse consequences exist from the conviction sufficient to

satisfy the case or controversy requirement of Article III; and (4) the error is of a

fundamental character.” Matus-Leva, 287 F.3d at 760. These elements are

conjunctive; thus, failure to meet any one of them is fatal. Id. Appellant cannot

satisfy, at a minimum, the final of these elements. In this context, an error is “of a

fundamental character” if it renders the entire proceeding “irregular and invalid.”

United States v. Addonizio, 442 U.S. 178, 186 (1979); see also Byrnes v. United

States, 408 F.2d 599, 602 (9th Cir. 1969). For the reasons stated above, the error

in calculating Appellant’s guidelines for the 1998 conviction – attributable to the

record of the 1995 conviction – was inconsequential and therefore cannot possibly

qualify as fundamental.

      The judgment of the district court is AFFIRMED.




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