Juan Jackson v. United States

PER CURIAM: * Juan Jackson, federal prisoner # 95377-012, was convicted by a jury of aiding and abetting kidnaping in violation of 18 U.S.C. §§ 1201(a)(1) and 2 (counts two and three) and unlawfully carrying and using a firearm during the commission of a crime in violation of 18 U.S.C. § 924(c) (count four). He was sentenced to life imprisonment on counts two and three, to be served concurrently, and 60 months of imprisonment on count four, to be served consecutively to the sentences for counts two and three. Jackson seeks leave to proceed in forma pauperis (IFP) on appeal from the district court’s denial of his petition for writ of audita querela challenging his sentence in view of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). By moving for leave to proceed IFP on appeal, Jackson is challenging the district court’s certification that his appeal presents no nonfrivolous issues and is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997). Jackson argues that the writ of audita querela is available because Booker established a new rule of constitutional law that was unforeseeable at the time of his sentencing, appeal, and habeas petition. He contends that United States v. Gentry, 432 F.3d 600, 605 (5th Cir.2005), is inapplicable because he filed a motion to reopen his criminal case pursuant to a writ of audita querela, and not under § 2255. He contends that Booker should be applied retroactively under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Jackson cannot assert this claim in a petition for writ of audita querela because redress is available under § 2255. See United States v. Banda, 1 F.3d 354, 356 *435 (5th Cir.1993). Jackson’s inability to meet the requirements for bringing a successive § 2255 motion does not render the § 2255 remedy unavailable. See Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir.2000). Jackson’s appeal is without arguable merit and is thus frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Accordingly, Jackson’s request for leave to proceed IFP is denied, and the appeal is dismissed. See 5th Cir. R. 42.2. IFP MOTION DENIED; APPEAL DISMISSED. Footnotes [*] Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.