HLD-053 (December 2010)                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-3340
                                      ___________

                            UNITED STATES OF AMERICA

                                             v.

                            ERIC L. MYRIECKES, SR.,
                                           Appellant
                      ____________________________________

                  On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                         (D.C. Civil No. 00-cr-00014-003)
                     District Judge: Honorable Kim R. Gibson
                    ____________________________________
                      Submitted for Possible Summary Action
                 Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 December 29, 2010
         Before: MCKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges
                         Opinion filed January 27, 2011
                                     _________

                                        OPINION
                                        _________

PER CURIAM.

              Eric L. Myrieckes, a federal prisoner, appeals from the order of the United

States District Court for the Western District of Pennsylvania denying his petition for a

writ of audita querela. We will affirm the District Court=s order.


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              In 2000, Myrieckes pleaded guilty to one count of conspiracy to distribute

cocaine base in violation of 21 U.S.C. § 846. He was sentenced to 188 months of

imprisonment. We affirmed Myrieckes’ conviction in 2002. See C.A. No. 01-3518. In

2005, Myrieckes sought relief in District Court under United States v. Booker, 

(2005). The District Court, with notice to Myrieckes, re-characterized the filing as a

motion under 28 U.S.C. § 2255 to vacate his sentence and denied relief. A few months

later, Myrieckes filed a post-judgment motion, which the District Court also denied.

Myrieckes appealed from the order denying his post-judgment motion, and we denied his

request for a certificate of appealability. See C.A. No. 05-5036. Myrieckes returned to

the District Court and filed additional motions for relief concerning his conviction and

sentence. The District Court dismissed the motions, concluding that they constituted

successive section 2255 motions to vacate his sentence that were filed without the

statutorily-required authorization from this Court. In 2007, we denied Myrieckes’

request for a certificate of appealability. See C.A. No. 07-2312.1

              In July 2010, Myrieckes filed a petition for a writ of audita querela in

District Court, again asserting that he was entitled to relief under Booker. He alleged

that, in light of Booker, his sentencing under the then-mandatory federal sentencing

guidelines scheme constitutes error. Myrieckes asserted that a writ of audita querela is


1
  Myrieckes then returned to District Court to pursue a motion for reduction of sentence
under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to the federal sentencing
guidelines. The District Court denied the motion, and we affirmed. See C.A. No. 09-
1282.
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his only available avenue of relief because of the statutory limitations on his ability to file

another section 2255 motion.2 The District Court denied Myrieckes’ petition, noting our

decision in Massey v. United States, 

(3d Cir. 2009) (per curiam). This

appeal followed.

              In Massey, a federal prisoner filed a petition for a writ of audita querela

seeking to challenge his sentence under Booker. The prisoner contended that he might

have received a shorter sentence if the sentencing court had not viewed the sentencing

guidelines as mandatory. We held that the prisoner could not seek relief through a

petition for a writ of audita querela because section 2255 was the appropriate remedy to

pursue his claim. See 

. We explained that the prisoner could not

resort to a writ of audita querela based on his inability to satisfy the statutory

requirements for filing a section 2255 motion. See 

is true here. We agree

with the District Court’s conclusion that the writ of audita querela is unavailable in

Myrieckes’ situation.

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

we will affirm the District Court=s order. See 3d Cir. LAR 27.4.

       2
         audita querela. A writ granted by the courts of common law in favor of one
       against whom execution had issued or was about to issue upon a judgment which
       it would be contrary to justice to enforce, either because of matters arising
       subsequent to the rendition thereof, or because of prior existing defenses which
       were not available to the judgment debtor in the original suit, by reason of the
       judgment creditor's fraudulent conduct, or through circumstances over which the
       judgment debtor had no control. Ballentine Law Dictionary with Pronunciations
       (1930).

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