HLD-147 (June 2010)                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-1998
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                                  JUAN DUINA,
                                              Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          (D.C. Crim. No. 98-cr-00276-001)
                     District Judge: Honorable Sylvia H. Rambo
                     ____________________________________

           Submitted for Possible Summary Action Pursuant to Third Circuit
                               LAR 27.4 and I.O.P. 10.6
                                    June 30, 2010
          Before: MCKEE, Chief Judge, SCIRICA and WEIS, Circuit Judges
                            Opinion filed: July 26, 2010
                                     _________

                                       OPINION
                                       _________

PER CURIAM.

             Juan Duina appeals from the District Court’s order denying his petition for

a writ of audita querela. For the reasons below, we will summarily affirm the District

Court’s order.

             In July 2000, Duina was convicted of drug trafficking and money
laundering. He was subsequently sentenced to 360 months in prison. His conviction and

sentence were affirmed on appeal. Duina filed an unsuccessful § 2255 motion as well as

an unsuccessful application to file a second or successive § 2255 motion. In September

2009, Duina filed a petition for a writ of audita querela. He requested that he be

resentenced based on the Supreme Court’s decision in United States v. Booker, 

(2005). After the government filed a response, the District Court denied the petition.

Duina’s reply was received a few days later. Duina subsequently filed a motion pursuant

to Fed. R. Civ. P. 60(b) seeking to reopen the case on the grounds that he had not received

the District Court’s order. The District Court granted the motion and noted that its

previous order was premature as it had not considered Duina’s reply. The District Court

considered the reply and denied the petition. Duina filed a timely notice of appeal.

              We have held that a defendant may not seek relief via a writ of audita

querela if his claim is cognizable under 28 U.S.C. § 2255. Massey v. United States, 

, 174 (3d Cir. 2009). Duina’s claim is cognizable under § 2255. That Duina is

unable to meet the gate-keeping requirements of the Antiterrorism and Effective Death

Penalty Act of 1996 does not entitle him to proceed via audita querela. 

action is appropriate if there is no substantial question presented

in the appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set

forth by the District Court, we will summarily affirm the District Court’s order. See

Third Circuit I.O.P. 10.6.




                                          3