     Case: 09-10939     Document: 00511121436          Page: 1    Date Filed: 05/25/2010




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

                                                  FILED
                                                                            May 25, 2010
                                     No. 09-10939
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JAMES B. SLAUGHTER,

                                                   Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 6:08-CV-29


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        James B. Slaughter, federal prisoner # 32675-077, was convicted by a jury
of conspiracy to distribute and possess with intent to distribute cocaine base,
distribution and possession of cocaine base within 1,000 feet of a playground,
and two counts of distribution of cocaine base.                Slaughter was sentenced
respectively to concurrent terms of imprisonment for life, 480 months, 480
months, and 240 months. Slaughter has been unsuccessful in seeking relief
under 28 U.S.C. § 2255.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10939    Document: 00511121436 Page: 2         Date Filed: 05/25/2010
                                 No. 09-10939

      Slaughter filed a petition for a writ of audita querela in the district court
challenging the legality of his sentence in light of United States v. Booker, 543
U.S. 220 (2005). The district court found that relief pursuant to a writ of audita
querela was not available because redress was available under § 2255. The
district court denied and dismissed Slaughter’s petition on that basis.
      Slaughter contends in this appeal that he should be permitted to assert his
Booker claim via a petition for a writ of audita querela because Booker was
decided after he was sentenced and is not retroactively applicable in the § 2255
context. Although the writ of audita querela “permits a defendant to obtain
relief against a judgment because of some legal defense arising after the
judgment,” United States v. Banda, 1 F.3d 354, 355 (5th Cir. 1993), a prisoner
may not seek a writ of audita querela if he “may seek redress under § 2255.” Id.;
see also Massey v. United States, 581 F.3d 172, 173-74 (3rd Cir. 2009). The fact
that a movant cannot meet the requirements for bringing a successive § 2255
motion does not render the § 2255 remedy unavailable. Tolliver v. Dobre, 211
F.3d 876, 878 (5th Cir. 2000). Because Slaughter’s remedy is under § 2255 and
he has not obtained leave of this court to file a successive § 2255 motion, the
district court did not err in dismissing his petition. The district court’s order is
      AFFIRMED.




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