Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-18-2009

USA v. Orlando Sanchez
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3368




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Recommended Citation
"USA v. Orlando Sanchez" (2009). 2009 Decisions. Paper 1857.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1857


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HLD-36     (January 2009)                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-3368
                                      ___________

                            UNITED STATES OF AMERICA

                                            v.

                  ORLANDO SANCHEZ, a/k/a ORLANDO SARRIA,
                                               Appellant
                     ___________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                            (M.D. Pa. Crim. No. 92-cv-00319)
                     District Judge: Honorable William W. Caldwell
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    January 30, 2009
           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                                (filed: February 18, 2009)
                                         _________

                                       OPINION
                                       _________

PER CURIAM.

             Orlando Sanchez, a federal prisoner proceeding pro se, appeals an order of

the United States District Court for the Middle District of Pennsylvania denying his



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petition for a writ of error audita querela. We will affirm the District Court’s order.

               In 1993, Sanchez was convicted of conspiracy to distribute cocaine,

possession by a felon of a firearm, and using or carrying a firearm in relation to a drug

trafficking crime. Sanchez was sentenced to a term of 386 months in prison. In 1994, we

affirmed Sanchez’s conviction and sentence, and the United States Supreme Court denied

Sanchez’s petition for a writ of certiorari. In 2001, the District Court denied Sanchez’s

motion to vacate his sentence pursuant to 28 U.S.C. § 2255. We denied his request for a

certificate of appealability.

               In 2005, we affirmed the District Court’s denial of Sanchez’s motion

pursuant to 18 U.S.C. § 3582(c), in which he argued that he was entitled to a sentence

reduction under United States v. Booker, 

(2005). We explained that

Sanchez’s challenge to his sentence fell within the purview of a motion under § 2255, and

that our authorization was required to file a second or successive § 2255 motion. We

noted that Booker is not retroactively applicable to cases on collateral review.

               Sanchez then challenged his sentence under the All Writs Act, 28 U.S.C. §

1651, by filing a petition for a writ of audita querela in District Court. Relying on

Booker, Apprendi v. New Jersey, 

(2000), and Blakely v. Washington, 

(2004), Sanchez argued that the sentencing court might have imposed a shorter

sentence if the court did not view the sentencing guidelines as mandatory, and that he was

punished for acts that were not found by a jury. The District Court denied Sanchez’s



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petition, and this appeal followed.

              The All Writs Act is a residual source of authority to issue writs that are not

otherwise covered by statute. Pennsylvania Bureau of Correction v. U.S. Marshals Serv.,

, 43 (1985). The common law writ of audita querela survives only to the

extent that it fills in gaps in the current system of post-conviction relief. United States v.

Valdez-Pacheco, 

, 1079 (9th Cir. 2001). The District Court correctly held

that Sanchez may not invoke the writ of audita querela because his claims are cognizable

under § 2255. See United States v. Holt, 

, 1175 (11th Cir. 2005) (holding

that the writ of audita querela is unavailable where relief is cognizable under § 2255);

(same).

              As recognized by the District Court, Sanchez may not avoid AEDPA’s

requirements for filing second or successive § 2255 motions by filing a petition for a writ

of audita querela. See United States v. Baptiste, 

, 189-90 (3d Cir. 2000) (per

curiam) (stating that a prisoner may not resort to a writ of coram nobis when he cannot

meet the standards for filing a second or successive § 2255 motion). In addition, as noted

above, even if Sanchez did not need our authorization to file a § 2255 motion, he would

not succeed under § 2255 because Booker and Apprendi do not apply retroactively to

cases on collateral review. Lloyd v. United States, 

, 616 (3d Cir. 2005);

United States v. Swinton, 

, 491 (3d Cir. 2003).




                                               3
              Accordingly, because this appeal does not present a substantial question, we

will affirm the District Court’s order denying Sanchez’s petition for a writ of audita

querela.




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