                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  February 16, 2018
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 17-3125
                                              (D.C. No. 2:06-CR-20078-JWL-1)
 JASON McKINNEY,                                          D. Kansas

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before MATHESON, KELLY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On March 29, 2017, Appellant Jason McKinney filed a pro se pleading

styled “Petition for Writ of Error Audita Querela.” McKinney sought a reduction



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
in the 360-month sentence he received for violating 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B)(iii), possession with intent to distribute fifty grams or more of crack

cocaine. Relying on Amendment 790 to the United States Sentencing Guidelines,

which clarified the “jointly undertaken criminal activity” analysis, see USSG

§ 1B1.3(a)(1)(B), McKinney argued the district court miscalculated the quantity

of drugs for which he was responsible under USSG § 2D1.1. McKinney

previously challenged his sentence by filing motions pursuant to 28 U.S.C. § 2255

and 18 U.S.C. § 3582(c), both of which were denied.

      The district court denied McKinney’s motion, concluding audita querela

relief was not available because other avenues of relief, namely 28 U.S.C. § 2255

and 18 U.S.C. § 3582(c), are available to McKinney and those avenues are not

inadequate or ineffective. United States v. Torres, 282 F.3d 1241, 1245 (10th Cir.

2002) (“[A] writ of audita querela is not available to a petitioner when other

remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255.”

(quotation omitted)). On appeal, McKinney argues § 2255 is not an avenue for

relief because the claim he seeks to raise is a non-constitutional claim based on a

clarifying amendment to the Guidelines and such a claim cannot be raised in a

§ 2255 motion. This court has already considered, and rejected, this argument.

United States v. Tinajero-Porras, 697 F. App’x 609, 611 (10th Cir. 2017)




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(unpublished disposition). 1 Although Tinajero-Porras is an unpublished

disposition, its reasoning is persuasive and its conclusion was based on this

court’s opinion in Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999)

(holding “§ 2255’s substantive and procedural barriers by themselves do not

establish that § 2255 is inadequate or ineffective”).

      The district court’s order denying McKinney’s petition for a writ of audita

querela is affirmed.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




      1
       We may consider non-precedential, unpublished decisions for their
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).

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