United States v. Mason

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 13, 2005

Charles R. Fulbruge III
Clerk
No. 04-30855
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFONZO MASON,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:02-CR-30044-1-RGJ
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Before DAVIS, SMITH and DENNIS, Circuit Judges

PER CURIAM:*

Alfonzo Mason, federal prisoner # 10614-035, appeals the

district court’s denial of his motion for a writ of audita querela

wherein he sought to challenge his sentence for conspiracy to

possess cocaine base with intent to distribute. Relying upon

Blakely v. Washington, 124 S. Ct. 2531 (2004), Mason argues that

the district court improperly enhanced his sentence based upon

facts to which he did not plead guilty and that were not determined

by a jury, in violation of his Fifth and Sixth Amendment rights.

*
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this opinion should not be published and is not precedent except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.
 No. 04-30855
-2-

In addition, Mason argues that the actual innocence exception to

the procedural default doctrine allows him to pursue the writ.

The writ of audita querela is not available where the prisoner

may pursue a remedy under 28 U.S.C. § 2255. United States v.

Banda, 1 F.3d 354, 356 (5th Cir. 1993). The fact that the movant

cannot meet the requirements for bringing a successive 28 U.S.C. §

2255 motion does not render the 28 U.S.C. § 2255 remedy

unavailable. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).

AFFIRMED.