CLD-263                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-2675
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                         DIODAYAN LEDESMA-CUESTA,
                                                Appellant
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 01-cr-00374-001)
                       District Judge: Honorable Stewart Dalzell
                      ____________________________________

                 Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                  August 11, 2011
              Before: RENDELL, FUENTES and SMITH, Circuit Judges

                            (Opinion filed: August 30, 2011)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Diodayan Ledesma-Cuesta appeals pro se from an order dismissing his petition for

a writ for audita querela. Because no substantial question is presented by this appeal, we

will summarily affirm the order of the District Court.
       In 2001, a jury convicted Ledesma-Cuesta of importation and attempted

importation of more than 500 grams of cocaine, possession and attempted possession

with intent to distribute more than 500 grams of cocaine on a vessel subject to the

jurisdiction of the United States, and reentry and attempted reentry to the United States

after deportation.1 We affirmed his conviction and sentence. United States v. Ledesma-

Cuesta, 

(3d Cir. 2003).

       In 2005, the District Court denied Ledesma-Cuesta’s motion to vacate his sentence

under 28 U.S.C. § 2555, and we declined to issue a certificate of appealability. C.A. No.

05-5537. In 2010, Ledesma-Cuesta filed a “motion for leave to intervene/reconsideration

to be afforded a C.O.A. pursuant L.A.R. 27.5,” which the District Court construed as a

motion for reconsideration. The District Court dismissed the motion and we denied his

request for a certificate of appealability. C.A. No. 10-4228.

       In May 2011, Ledesma-Cuesta filed a “motion for relief of judgment pursuant to

title 28 U.S.C. § 1651(a) the writ of audita querela.”2 He argued that his base offense

level was incorrectly calculated at the sentencing hearing. The District Court denied the




       1
         Ledesma-Cuesta was also convicted of another count, which the District Court later
vacated after finding that it was a lesser included offense of one of the other convictions.
       2
        Ledesma-Cuesta also filed a “motion to review statutory interpretation of USSG
§ 4B1.1 pursuant to Fed. Rules Crim. P (36),” which the District Court forwarded to this
Court. We will dismiss this motion as it is not properly before this Court. See Sheet
Metal Workers' Int’l Ass'n Local 19 v. Herre Bros., Inc., 

, 394 (3d Cir.
1999) (district court retains jurisdiction to issue orders over those aspects of the case not
involved in the appeal).

                                             2
motion, finding that such a challenge must be brought in a § 2255 motion. Ledesma-

Cuesta appeals.

       We have jurisdiction under 28 U.S.C. § 1291. The writ of audita querela is

available as residual post-conviction relief. Massey v. United States, 

, 174

(3d Cir. 2009). Thus, relief via a petition for a writ of audita querela is not available

where a specific statute addresses the issue at hand. 

to collaterally

challenge a federal conviction or sentence” is through a motion pursuant to 28 U.S.C. §

2255, not a petition for a writ of audita querela. 

District Court did not

err in denying Ledesma-Cuesta’s petition for a writ of audita querela.3

       Accordingly, we will affirm the District Court’s order. Ledesma-Cuesta’s “motion

to review statutory interpretation of USSG § 4B1.1 pursuant to Fed. Rules Crim. P (36)”

is dismissed.




       3
         If Ledesma-Cuesta wishes to proceed with his collateral attack on the legality of
his sentence, the District Court correctly noted that Ledesma-Cuesta is required to seek
permission from this Court before he can file a second or successive § 2255 motion in the
District Court. See 28 U.S.C. § 2255(h).
                                             3