FILED
United States Court of Appeals
Tenth Circuit
February 16, 2018
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3125
(D.C. No. 2:06-CR-20078-JWL-1)
JASON McKINNEY, D. Kansas
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MATHESON, KELLY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this court has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
On March 29, 2017, Appellant Jason McKinney filed a pro se pleading
styled “Petition for Writ of Error Audita Querela.” McKinney sought a reduction
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
in the 360-month sentence he received for violating 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(iii), possession with intent to distribute fifty grams or more of crack
cocaine. Relying on Amendment 790 to the United States Sentencing Guidelines,
which clarified the “jointly undertaken criminal activity” analysis, see USSG
§ 1B1.3(a)(1)(B), McKinney argued the district court miscalculated the quantity
of drugs for which he was responsible under USSG § 2D1.1. McKinney
previously challenged his sentence by filing motions pursuant to 28 U.S.C. § 2255
and 18 U.S.C. § 3582(c), both of which were denied.
The district court denied McKinney’s motion, concluding audita querela
relief was not available because other avenues of relief, namely 28 U.S.C. § 2255
and 18 U.S.C. § 3582(c), are available to McKinney and those avenues are not
inadequate or ineffective. United States v. Torres, 282 F.3d 1241, 1245 (10th Cir.
2002) (“[A] writ of audita querela is not available to a petitioner when other
remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255.”
(quotation omitted)). On appeal, McKinney argues § 2255 is not an avenue for
relief because the claim he seeks to raise is a non-constitutional claim based on a
clarifying amendment to the Guidelines and such a claim cannot be raised in a
§ 2255 motion. This court has already considered, and rejected, this argument.
United States v. Tinajero-Porras, 697 F. App’x 609, 611 (10th Cir. 2017)
-2-
(unpublished disposition). 1 Although Tinajero-Porras is an unpublished
disposition, its reasoning is persuasive and its conclusion was based on this
court’s opinion in Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999)
(holding “§ 2255’s substantive and procedural barriers by themselves do not
establish that § 2255 is inadequate or ineffective”).
The district court’s order denying McKinney’s petition for a writ of audita
querela is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
1
We may consider non-precedential, unpublished decisions for their
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).
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