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

                                                FILED
                                                                 June 16, 2009
                                No. 08-10792
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

KERRY DEWAYNE LAURY

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 3:93-CR-3-2


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Kerry Dewayne Laury, federal prisoner # 24149-077, appeals the district
court’s denial of his petition for a writ of audita querela, filed pursuant to 28
U.S.C. § 1651. In 1993, Laury was convicted of five counts of aiding and abetting
robbery and five counts of aiding and abetting the carrying of a firearm in
connection with the robberies. Laury was sentenced to a total of 1,071 months
of imprisonment.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-10792

      Laury argues that he was sentenced for conduct not charged in the
indictment or proven to a jury. He contends that his sentence was imposed in
violation of the principles announced in United States v. Booker, 543 U.S. 220
(2005), and that therefore he is entitled to relief in the form of a writ of audita
querela. A prisoner may not seek a writ of audita querela if he “may seek
redress under [28 U.S.C.] § 2255.” United States v. Banda, 1 F.3d 354, 356 (5th
Cir. 1993). Booker does not apply retroactively to cases on collateral review and
does not provide a ground for filing a successive § 2255 motion. United States
v. Gentry, 432 F.3d 600, 605 (5th Cir. 2005); In re Elwood, 408 F.3d 211, 212-13
(5th Cir. 2005).    Nevertheless, 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).
Therefore, Laury has not shown that he is entitled to the relief requested.
Accordingly, the judgment of the district court is AFFIRMED.




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