IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2009
No. 08-10792
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KERRY DEWAYNE LAURY
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:93-CR-3-2
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Kerry Dewayne Laury, federal prisoner # 24149-077, appeals the district
court’s denial of his petition for a writ of audita querela, filed pursuant to 28
U.S.C. § 1651. In 1993, Laury was convicted of five counts of aiding and abetting
robbery and five counts of aiding and abetting the carrying of a firearm in
connection with the robberies. Laury was sentenced to a total of 1,071 months
of imprisonment.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-10792
Laury argues that he was sentenced for conduct not charged in the
indictment or proven to a jury. He contends that his sentence was imposed in
violation of the principles announced in United States v. Booker, 543 U.S. 220
(2005), and that therefore he is entitled to relief in the form of a writ of audita
querela. A prisoner may not seek a writ of audita querela if he “may seek
redress under [28 U.S.C.] § 2255.” United States v. Banda, 1 F.3d 354, 356 (5th
Cir. 1993). Booker does not apply retroactively to cases on collateral review and
does not provide a ground for filing a successive § 2255 motion. United States
v. Gentry, 432 F.3d 600, 605 (5th Cir. 2005); In re Elwood, 408 F.3d 211, 212-13
(5th Cir. 2005). Nevertheless, the fact that a movant cannot meet the
requirements for bringing a successive § 2255 motion does not render the § 2255
remedy unavailable. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
Therefore, Laury has not shown that he is entitled to the relief requested.
Accordingly, the judgment of the district court is AFFIRMED.
2