CLD-089                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                          No. 10-4363
                                          ___________

                          IN RE: MICHAEL J. ANDERSON,
                                                      Petitioner
                       ____________________________________

                             Petition for Writ of Mandamus
                          from the United States District Court
                                for the District of Delaware
                      (Related to D. Del. Criminal No. 05-cr-00051)
                       ____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    January 13, 2011

               Before: RENDELL, FUENTES and SMITH, Circuit Judges


                             (Opinion filed: January 27, 2011)
                                        _________

                               OPINION OF THE COURT
                                     _________

PER CURIAM

       Michael Anderson seeks a writ of mandamus and audita querela compelling the

District Court of the District of Delaware to reduce his criminal sentence. For the reasons

that follow, we will deny the petition.

                                              I.

       In 2005, Anderson pleaded guilty to robbery and was sentenced to a term of 110
months of imprisonment. In calculating Anderson’s criminal history score under the

2005 Sentencing Guidelines Manual, the District Court assessed one criminal history

point under § 4A1.1(e) because Anderson had committed the offense less than two years

after release from imprisonment. See U.S.S.G. § 4A1.1(e). Anderson did not appe al his

sentence or seek review under 28 U.S.C. § 2255.

       Points assessed under § 4A1.1(e) are commonly referred to as “recency” points.

The 2010 Sentencing Guidelines Manual, which became effective November 1, 2010,

eliminated the use of recency points in calculating a defendant’s criminal history score

under § 4A1.1. On November 17, 2010, Anderson filed a motion in this Court seeking a

correction of his sentence on the basis that, under the 2010 revised guidelines, his

criminal history category would not have been enhanced due to recency points.

Anderson seeks relief via writ of Audita Querela and Mandamus under 28 U.S.C. § 1651

because, he argues, neither a motion under 28 U.S.C. § 2255 nor a motion under 18

U.S.C. § 3582 is an appropriate remedy.

       A writ of mandamus is a “drastic remedy” that should only be granted in

“extraordinary circumstances.” In re Nwanze, 

, 524 (3d Cir. 2001). The

petitioner must have no other adequate means to obtain the relief desired and the

petitioner must show a “clear and indisputable” right to the writ. See Kerr v. United

States District Court, 

, 403 (1976). “[M]andamus is not a substitute for

appeal and a writ of mandamus will not be granted if relief can be obtained by way of our



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appellate jurisdiction.” In re Chambers Dev. Co., 

, 226 (3d Cir. 1998).

       Anderson has not satisfied the standard for obtaining mandamus relief. First,

Anderson has not demonstrated a clear and indisputable right to the writ. Under 18

U.S.C. § 3582(c)(2), a defendant who has been sentenced to a term of impriso nment

based on a sentencing range that has been lowered by the Sentencing Commission may

seek a recalculation of sentence in the District Court. The District Court is authorized to

reduce the defendant’s sentence based on such an amendment to the Guidelines, provided

that the amendment is among those enumerated in U.S.S.G. § 1B1.10(c). See 18 U.S.C.

§ 3582(c)(2); U.S.S.G. § 1B1.10. The amendment Anderson relies on (Amendment 742)

is not one of the amendments listed in § 1B1.10(c). Therefore, Anderson has not shown

that he has a clear and indisputable right to a reduction in sentence under 18 U.S.C. §

3582(c)(2) and U.S.S.G. § 1B1.10(a)(1) and (2).

       Even if Anderson could demonstrate an indisputable right to the writ, Anderson

has not demonstrated that he has no other adequate means to obtain the relief desired. As

explained above, § 3852 provides an avenue for relief in the District Court. Anderson

argues that § 3582(c)(2) is not applicable because the amended guideline does not apply

retroactively in his case. However, Anderson may not seek relief through a petition for a

writ of mandamus based on his inability to satisfy the requirements of § 3582. See

United States v. Baptiste, 

, 189-90 (3d Cir. 2000) (holding that petitioner

could not resort to coram nobis merely because he was unable to meet AEDPA’s



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gatekeeping requirements). The same applies to petitions for a writ of mandamus.

Anderson, therefore, cannot demonstrate that he is entitled to a writ of mandamus.

        Nor may Anderson obtain relief via the writ of audita querela. The writ of audita

querela is available in criminal cases “to the extent that it fills in gaps in the current

system of post-conviction relief.” Massey v. United States, 

, 174 (3d Cir.

2009). Where a statute specifically addresses the particular issue at hand, however, “it is

that authority, and not the All Writs Act, that is controlling.” 

As

discussed above , 18 U.S.C. § 3582(c)(2) is the statute that specifically addresses the relief

sought here. Anderson has not identified a gap in his post-conviction remedies that

would require resort to the writ of audita querela.

        Accordingly, the petition will be denied. Because we dismiss the petition on other

grounds, the Government’s motion to dismiss for lack of jurisdiction will be denied as

moot.




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