Case: 16-51418 Document: 00514189733 Page: 1 Date Filed: 10/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51418 FILED
Summary Calendar October 10, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID ROMO, also known as El Senor,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:11-CR-360-12
Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
David Romo, federal prisoner # 68895-080, has moved for leave to
proceed in forma pauperis (IFP). He seeks to appeal the district court’s denial
of his petition for a writ of audita querela in which he challenged the sentence
imposed for his convictions for conspiracy to possess with intent to distribute
five kilograms or more of cocaine and conspiracy to possess with intent to
distribute one kilogram or more of heroin.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-51418 Document: 00514189733 Page: 2 Date Filed: 10/10/2017
No. 16-51418
Romo argues that the district court erred in dismissing his petition for
lack of jurisdiction on the grounds that (1) his sentence violates his rights to
due process and equal protection because his 21 U.S.C. § 851 enhancement was
based on 21 U.S.C. § 802(44)’s definition of “felony drug offense,” which he
contends is unconstitutionally vague; (2) his sentencing enhancement is
unconstitutional in light of Mathis v. United States, 136 S. Ct. 2243 (2016),
Moncrieffe v. Holder, 569 U.S. 184 (2013), and United States v. Hinkle, 832
F.3d 569 (5th Cir. 2016), because it is not predicated upon an offense that
categorically matches a Controlled Substances Act felony; and (3) dismissal of
his writ application amounted to an unconstitutional suspension of the writ.
By moving for leave to proceed IFP on appeal, Romo challenges the
district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into his good
faith “is limited to whether the appeal involves legal points arguable on their
merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted).
Romo has not shown that he was entitled to relief under an application
for a writ of audita querela. “Where a statute specifically addresses the
particular issue at hand, it is that authority, and not the All Writs Act, that is
controlling.” Carlisle v. United States, 517 U.S. 416, 429 (1996) (internal
quotation marks and citation omitted). Although Romo challenges his
sentence based, in part, upon decisions issued after his sentencing, he has
failed to show that redress is unavailable through a 28 U.S.C. § 2255 motion.
See United States v. Miller, 599 F.3d 484, 487-88 (5th Cir. 2010); United States
v. Orozco-Ramirez, 211 F.3d 862, 867-68 (5th Cir. 2000). To the extent that he
cannot satisfy the requirements to file a successive § 2255 motion, see In re
Lott, 838 F.3d 522, 523 (5th Cir. 2016), the § 2255 remedy nonetheless is
2
Case: 16-51418 Document: 00514189733 Page: 3 Date Filed: 10/10/2017
No. 16-51418
considered to be available, see Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir.
2000).
Accordingly, Romo has failed to show an error in the district court’s
certification decision and has not established that he will raise a nonfrivolous
issue on appeal. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220. Romo’s
motion for leave to proceed IFP is DENIED, and his appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
3