DLD-088                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-4609
                                      ___________

                               IN RE: DION MUTH,
                                                Petitioner
                      ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Middle District of Pennsylvania
                   (Related to M.D. Pa. Crim. No. 06-cr-00170-001)
                      ____________________________________

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

              Before: BARRY, FISHER and STAPLETON, Circuit Judges

                            (Opinion filed: January 20, 2011)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Dion Muth, proceeding pro se and in forma pauperis, petitions for a writ of

mandamus. For the reasons that follow, we will deny the petition.

       In 2006, Muth pleaded guilty to charges of possession with intent to distribute

crack cocaine and powder cocaine, in violation of 21 U.S.C. § 841(a)(1). The United

States District Court for the Middle District of Pennsylvania applied an offense level of

32 under the Career Offender enhancement, U.S.S.G. § 4B1.1(b), and sentenced him to
150 months’ imprisonment. Subsequently, Muth moved for a sentence reduction under

18 U.S.C. § 3582(c)(2) based on the retroactive amendment to the sentencing guidelines

concerning crack cocaine. U.S.S.G. App. C. Amend. 706 (Nov. 1, 2007). The district

court found that the amendment did not apply to Muth because his sentence was based on

the Career Offender enhancement and not on his crack cocaine conviction. Muth

appealed from the district court’s denial of his § 3582 motion. We affirmed the district

court’s order. (C.A. No. 09-2286.)

       Muth has filed the present petition for a writ of mandamus asserting that our

decision in United States v. Johnson, 

(3d Cir. 2009), constitutes an

intervening change in the law, requiring the district court to hold an evidentiary hearing

and to resentence him. He claims that he should not be classified as a career offender

because his state conviction for simple assault was not a “crime of violence” under the

sentencing guidelines.

       The writ of mandamus traditionally has been used “to confine an inferior court to a

lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when

it is its duty to do so.” In re Patenaude, 

, 140 (3d Cir. 2000) (internal

citations omitted). It is an appropriate remedy that is granted only in “extraordinary

circumstances.” In re Diet Drugs Prods. Liab. Litig., 

, 378 (3d Cir. 2005).

To obtain a writ of mandamus, the petitioner must establish that he has “no other

adequate means to attain . . . relief,” and that he has a “clear and indisputable” right to

issuance of the writ. 

Muth has not established an “indisputable” right to
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the relief he requests, and we will thus deny the petition.

       We note that, if Muth is attempting to appeal from his sentence, a petition for

mandamus “must not be used” for this purpose. Madden v. Myers, 

, 77 (3d

Cir. 1996) (internal citation omitted). Further, to the extent Muth claims that he is

serving an illegal sentence based on the sentencing court’s alleged error, such a challenge

is properly raised in the first instance in the district court, see, e.g., 28 U.S.C. § 2255, not

through a petition for writ of mandamus.1

       Accordingly, we will deny Muth’s petition.




       1
          We also reject Muth’s request for a writ of audita querela, a remedy that is
available only in the rarest of circumstances. We note that a petitioner may not seek such
relief if he or she has a claim cognizable under 28 U.S.C. § 2255. See Massey v. United
States, 

, 174 (3d Cir. 2009).
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