     Case: 19-50232      Document: 00515404806         Page: 1    Date Filed: 05/05/2020




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

                                      No. 19-50232
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             May 5, 2020

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

GUADALUPE ALVARADO GALINDO,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:02-CR-43-1


Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Guadalupe Alvarado Galindo, federal prisoner # 27066-180, moves for
leave to proceed in forma pauperis (IFP) on appeal from the denial of his
petition for a writ of audita querela.           He also moves for a certificate of
appealability (COA), but a COA is not required to appeal the denial of a writ
of audita querela. See 28 U.S.C. § 2253(c)(1). Accordingly, we deny his motion
for a COA as unnecessary.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50232     Document: 00515404806     Page: 2   Date Filed: 05/05/2020


                                  No. 19-50232

      By moving for leave to proceed IFP on appeal, Galindo is challenging the
district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into his good
faith “is limited to whether the appeal involves legal points arguable on their
merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted).
      Galindo first argues that the statutory enhancement of his sentence
pursuant to 21 U.S.C. § 841(b)(1)(A) and 21 U.S.C. § 851 has become improper
in light of Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United
States, 136 S. Ct. 2243 (2016). Because he may seek redress of this claim in a
motion under 28 U.S.C. § 2255, a writ of audita querela, if it still exists in
criminal cases, would not be available for the claim. See United States v.
Miller, 599 F.3d 484, 488 (5th Cir. 2010). Furthermore, Galindo’s inability to
meet the requirements for filing a second or successive § 2255 motion would
not render the § 2255 remedy unavailable for purposes of audita querela. See
Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
      The remaining claims raised by Galindo also fall outside the scope of
relief a writ of audita querela could provide. Whereas audita querela “can only
be available where there is a legal objection to a judgment which has arisen
subsequent to that judgment,” Miller, 599 F.3d at 488, Galindo’s claims that
the district court miscalculated his criminal history points and failed to engage
in the colloquy required under § 851(b) allege errors that arose before his
criminal judgment was entered.        Additionally, Galindo’s arguments that
different prosecutorial policies would be in effect if he were sentenced today, in
light of memoranda by former Attorney General Eric Holder, does not allege
that his criminal judgment has become infirm legally. See id.




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                                 No. 19-50232

     Galindo has failed to show an error in the district court’s certification
decision and has not established that he will raise a nonfrivolous issue on
appeal. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220. His motion for
leave to proceed IFP is DENIED, his motion for a COA is DENIED as
unnecessary, and his appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2;
Baugh, 117 F.3d at 202 & n.24.




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