DLD-101                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-3969
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                         JAMES FRANCIS LEINENBACH,
                                              Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                       (D.C. Criminal No. 2-93-cr-00280-001)
                     District Judge: Honorable Eduardo Robreno
                     ____________________________________

   Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 January 28, 2011
             Before: BARRY, FISHER and STAPLETON, Circuit Judges

                            (Opinion filed: February 7, 2011)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      James Leinenbach appeals from an order of the District Court denying his petition

for a writ of audita querela. For the following reasons, we will summarily affirm.

      Following his 1994 jury trial in the Eastern District of Pennsylvania, appellant

Leinenbach was found guilty of charges relating to the manufacture and distribution of
methamphetamine. After an unsuccessful direct appeal, see United States v. Leinenbach,

(3d Cir. 1995), cert denied, 

(1996), Leinenbach commenced a

series of collateral attacks on his conviction, including a motion under 28 U.S.C. § 2255,

a motion under 18 U.S.C. § 3582(c)(2), a second § 2255 motion, and a motion pursuant

to Fed. R. Civ. P. 60(b).

       Leinenbach filed the instant ―Petition for Writ of Audita Querela, Pursuant to ‗All

Writs Act‘ of 28 U.S.C. § 1651‖ [hereinafter ―Petition‖] on December 30, 2009. In the

petition, Leinenbach argued that ―[i]n light of an intervening interpretation of [the

relevant criminal statute, he was] entitled to review via the writ of audita querela to assess

the propriety of the sentenced imposed under the previous (and erroneous) construction

of the statute.‖ Petition 5. In essence, he claimed that because the way drug quantities

are determined and considered under 21 U.S.C. § 841 has changed since his conviction,

his sentence is ―erroneous‖ under the statute. Moreover, since a ―judicial construction of

a statute is an authoritative statement of what the statute meant before as well as after the

decision giving rise to that construction,‖ Petition 13 (misquoting Rivers v. Roadway

Express, 

, 302 (1994)), he is not barred from seeking relief by Teague v.

Lane, 

(1989).

       The District Court denied the motion. It first examined the ambit of the writ of

audita querela, observing that ―if a ‗statute specifically addresses the particular issue at

hand, it is that authority, and not the All Writs Act, that is controlling.‘‖ Leinenbach v.

United States, No. 93-cr-280, 

, at *5 (E.D. Pa. Aug. 13,
                                               2
2010) (quoting Pa. Bureau of Corr. v. U.S. Marshals Serv., 

, 43 (1985);

Massey v. United States, 

, 174 (3d Cir. 2009)). As Leinenbach sought

vacatur of his sentence, ―precisely the type of relief afforded by a petition under 28

U.S.C. § 2255,‖ this ―specific avenue by which a defendant could attack the legality of a

sentence‖ prevented the use of audita querela. 

This appeal followed.

         We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a District

Court‘s order granting or denying a petition for a writ of audita querela is plenary. See

United States v. Gamboa, 

, 494 (9th Cir. 2010); cf. Grider v. Keystone

Health Plan Cent., Inc., 

, 328 (3d Cir. 2007) (conducting plenary review of

injunctions under All Writs Act); Cradle v. United States ex rel. Miner, 

,

538 (3d Cir. 2002) (conducting plenary review of § 2241 petitions). If an appeal does not

present a substantial question, we may summarily affirm the District Court‘s decision.

See LAR 27.4; I.O.P. 10.6; United States v. Baptiste, 

, 190 n.3 (3d Cir.

2000).

         We are in full accord with the District Court. As we observed in Massey v. United

States, 

(3d Cir. 2009), the All Writs Act provides only residual authority;

when specific statutory grants such as § 2255 provide an avenue for relief, the narrower

procedure controls. See 

. Leinenbach ―may not seek relief

through a petition for a writ of audita querela on the basis of his inability to satisfy the

requirements of the Antiterrorism and Effective Death Penalty Act of 1996.‖ 

wish to proceed with his collateral attack on the legality of his federal conviction and
                                               3
sentence, he must do so under 28 U.S.C. § 2255—which, we observe, would require that

he obtain from this Court ―an order authorizing the district court to consider the

application.‖ See 28 U.S.C. § 2244(b)(3)(A).

       Because this appeal does not present a substantial question, we will summarily

affirm the judgment of the District Court.




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