United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50087
Summary Calendar
BUDDY RAY GUNN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CV-184-EP
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Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
Buddy Ray Gunn, federal prisoner # 11525-080, appeals the
dismissal of his petition for a writ of audita querela seeking to
be resentenced as a non-career offender. He argues that the
district court erred in determining that his claim was procedurally
defaulted because he is actually innocent of the career offender
sentence. Gunn argues that in light of this court’s decision in
United States v. Bellazerius, 24 F.3d 698 (5th Cir. 1994), his
1
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
prior drug conspiracy conviction was improperly used to categorize
him as a career offender under U.S.S.G. § 4B1.1.
It is doubtful that Gunn can rely on the writ of audita
querela to obtain relief because he had other procedural vehicles
available in which to raise his claim under Bellazerius. See
United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993).
Even assuming that the writ is available to him, Gunn is not
entitled to relief because he has not demonstrated that he is
actually innocent of the offense that was used to support the
application of the career offender guideline. See Kinder v. Purdy,
222 F.3d 209, 211-13 (5th Cir. 2000); United States v. Williamson,
183 F.3d 458, 462 (5th Cir. 1999).
The dismissal of the writ is
AFFIRMED.
2