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UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. Case No. 4:92cr4013-WS

Case No. 4:09cv248-WS/WCS

MARLIN DAVIS, 

Defendant.

 

REPORT AND RECOMMENDATION TO DENY PETITION

Defendant Davis filed a "PETITION FOR WRIT OF ERROR AUDITA QUERELA,"

pursuant to 28 U.S.C. § 1651. Doc. 1895. 

By way of background, Defendant's sentence was recently reduced pursuant to

18 U.S.C. § 3582(c)(2). Doc. 1809. Application of Amendment 706 to the United States

Sentencing Guidelines reduced Defendant's offense level from 42 to 40. Based on an

adjusted offense level of 40 and criminal history category II, the guidelines range was

324-405 months. Defendant was sentenced to the bottom of the range, reducing his

sentence from 360 months (the bottom of his original guidelines range) to 324 months. 

Id. 
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1

 In United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005), the court

determined that Booker itself did not create jurisdiction to reduce sentence. See doc.

1815, p. 2. 

Case Nos. 4:92cr4013-WS and 4:09cv248-WS/WCS

Defendant then argued he was entitled to a further reduction, based on a criminal

history category I rather than II, as his state court conviction for possession of cocaine

was part of the instant offense and did not count as a prior sentence under U.S.S.G. §

4A1.2. Doc. 1800 ("Additional Section 3553 Factors"), pp. 1-2; doc. 1813 ("Motion for

Reconsideration of Marlin Davis' Request to Recalculate Sentence Based on Correct

Information and Sentence in Criminal History Category I Applying Booker"), pp. 2-3. 

The court denied reconsideration, finding its authority to reduce the sentence

under § 3582(c)(2) was limited, that a full resentencing was not authorized under

U.S.S.G. § 1B1.10, and that United States v. Booker, 543 U.S. 200, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005) did not apply. Doc. 1815. The court granted leave to proceed in

forma pauperis on appeal, however, as the Eleventh Circuit had not yet addressed the

precise issue of applying Booker where modification was warranted under § 3582(c)(2). 

Doc. 1826.1

 

Section 3582(c)(2) authorizes the court to reduce a sentence for a defendant

whose sentencing range was subsequently lowered by amendment, "after considering

the factors set forth in section 3553(a) to the extent that they are applicable, if such a

reduction is consistent with applicable policy statements issued by the Sentencing

Commission." Section 1B1.10(a)(1) provides that, "[a]s required by 18 U.S.C.

3582(c)(2), any such reduction in the defendant's term of imprisonment shall be

consistent with this policy statement." 
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2

 In doing so, the court noted only the Ninth Circuit had found Booker to prohibit

limitations on discretion in reducing sentence under § 3582(c)(2), and followed the

circuits that had held to the contrary. 556 F.3d at 1192, rejecting United States v. Hicks,

472 F.3d 1167 (9th Cir. 2007) (other citations omitted). Defendant relied on Hicks in his

motion for reconsideration. Doc. 1813, pp. 2-3. 

Case Nos. 4:92cr4013-WS and 4:09cv248-WS/WCS

Further, 

[T]he court shall determine the amended guideline range that would have

been applicable to the defendant if the amendment(s) to the guidelines

listed in subsection (c) [listing those amendments that apply retroactively]

had been in effect at the time the defendant was sentenced. In making

such determination, the court shall substitute only the amendments listed

in subsection (c) for the corresponding guideline provisions that were

applied when the defendant was sentenced and shall leave all other

guideline application decisions unaffected. 

§ 1B1.10(b)(1) (emphasis added). With exceptions not applicable here, "the court shall

not reduce the defendant's term of imprisonment under 18 U.S.C. 3582(c)(2) and this

policy statement to a term that is less than the minimum of the amended guideline

range determined under subdivision (1) of this subsection." § 1B1.10(b)(2)(A). 

In United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir.), cert. denied, 129

S.Ct. 2382 (2009), the Eleventh Circuit determined that Booker did not prohibit the

limitations imposed by § 1B1.10 on a judge's discretion in reducing a sentence under §

3582(c)(2).2

 

"[A] district court is bound by the limitations on its discretion imposed by §

3582(c)(2) and the applicable policy statements by the Sentencing

Commission." The district court was bound by the policy statement

contained in U.S.S.G. § 1B1.10(b)(2)(A) that, in considering an 18 U.S.C.

§ 3582(c)(2) motion, it may not reduce a sentence below the amended

guideline range.

United States v. Smith, 568 F.3d 923, 929 (11th Cir. 2009) (quoting Melvin). 
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Case Nos. 4:92cr4013-WS and 4:09cv248-WS/WCS

In the current petition, Defendant reasserts his argument that the determination

of criminal history category II at sentencing was improper under U.S.S.G. § 4A1.1. As

this argument was rejected for purposes of the § 3582(c)(2) proceeding, Defendant

contends that a writ of audita querela is appropriate, citing United States v. Morgan, 346

U.S. 502, 74 S.Ct. 247, 98 L.Ed.2d 248 (1954) and United States v. Holt, 417 F.3d 1172

(11th Cir. 2005). Doc. 1895, p. 2. Defendant asserts that this challenge was not

available before the § 3582 motion was granted because the error would have been

deemed harmless. Id., p. 3. When the § 3582 motion was granted, Defendant's

offense level was reduced from 42 (with a guidelines range of 360 to life whether

category I or II) to 40 (with a guidelines range of 324-405 months for category II, and a

range of 292-365 months for category I). 

As explained in Holt, audita querela "was an ancient writ used to attack the

enforcement of a judgment after it was rendered." 417 F.3d 1172, 1174 (citation

omitted). See also United States v. Ayala, 894 F.2d 425, 427 (D.C. Cir. 1990) ("[t]he

common law writ of audita querela permitted a defendant to obtain 'relief against a

judgment or execution because of some defense or discharge arising subsequent to the

rendition of the judgment.' Although historically audita querela existed as a remedy

primarily for judgment debtors, it apparently has been recognized as a remedy for

criminal defendants in at least some state jurisdictions.") (citations and footnotes

omitted). 

Authority to recognize such remedies under 28 U.S.C. § 1651 is governed by

United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), which found
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3

 The Seventh Circuit "own[ed] to some doubt," whether there was any "gap" in

federal postconviction remedies, "given the availability of section 2255 for defendants in

federal custody and coram nobis for defendants no longer in federal custody. 

Moreover, even if there were such a gap, it is very doubtful that audita querela would be

the means to fill it. Our research has failed to discover any criminal case in which this

writ has ever been asked for, let alone issued; it appears to be primarily a remedy of

judgment debtors." Kimberlin, 675 F.2d at 869 (citation omitted); Ayala, 894 F.2d at

428 (quoting this in part). 

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a prisoner no longer "in custody" for 28 U.S.C. § 2255 purposes could seek relief by

petition for writ of error coram nobis. 417 F.3d at 1174-75 (discussing Morgan); 894

F.2d at 427-428 (discussing Morgan). "The teaching of Morgan is that federal courts

may properly fill the interstices of the federal postconviction remedial framework through

remedies available at common law.” 894 F.2d 425, 428; 417 F.3d at 1175 (quoting

Ayala), also citing United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir. 1982).3

The Eleventh Circuit followed the Seventh and other circuits in finding that "a

federal prisoner may not use the writ of audita querela where postconviction relief is

available through § 2255 or coram nobis motions." 417 F.3d at1175 (collecting cases). 

Defendant claims that relief is not available for his claim under 28 U.S.C. § 2255,

as the issue is not jurisdictional or constitutional, he failed to raise the claim on appeal,

and misapplication of the guidelines is generally not cognizable under § 2255. Doc.

1895, p. 5. It is true that a claim of guidelines error is a nonconstitutional claim,

cognizable under § 2255 only if it constitutes a "'fundamental defect which inherently

results in a complete miscarriage of justice [or] an omission inconsistent with the

rudimentary demands of fair procedure.'" Burke v. United States, 152 F.3d 1329, 1331

(11th Cir.1998), cert. denied, 526 U.S. 1145 (1999); Lynn v. United States, 365 F.3d
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1225, 1232, 1233 and n. 15 (11th Cir.), cert. denied, 125 S.Ct. 167 (2004) (collecting

cases, including Burke). 

But assuming audita querela is, like coram nobis, appropriate in some situations,

such an "extraordinary remedy" is available "only under circumstances compelling such

action to achieve justice," to right "errors 'of the most fundamental character.'" Morgan,

at 511, 512, 74 S.Ct. at 252, 253 (citation and footnote omitted); see also United States

v. Denedo, 129 S.Ct. 2213, 2220 (June 8, 2009) (noting "we were careful in Morgan to

limit the availability of the writ to 'extraordinary' cases presenting circumstances

compelling its use 'to achieve justice.' ") (quoting Morgan). "Circumstances compelling

such action to achieve justice," as required by Morgan, "exist only when the error

involves a matter of fact of the most fundamental character which has not been put in

issue or passed upon and which renders the proceeding itself irregular and invalid." 

Moody v. United States, 874 F.2d 1575, 1576-78 (11th Cir. 1989), cert denied, 493 U.S.

1081 (1990), citing Morgan and United States v. Mayer, 235 U.S. 55, 67-68, 35 S.Ct.

16, 19, 59 L.Ed. 129 (1914). 

It is not available here, to raise an alleged error in sentencing rather than in the

conviction itself. Cf. Lowery v. United States, 956 F.2d 227, 230 (11th Cir. 1992)

(coram nobis remedy not available; "Lowery's PSI claim implicates only the sentence

that he received for his prior forgery conviction, not the validity of the conviction itself.")
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4

 In Lowery, the petitioner sought to challenge by coram nobis a 1979 federal

conviction and sentence, which had expired but was used to enhance a later state court

sentence. As to the conviction, the court found no reason he could not challenge it by

28 U.S.C. § 2254 petition attacking the enhanced state sentence. 956 F.2d at 229. 

5

 Defendant was previously denied § 2255 relief, and is aware that he must

obtain authorization from the Eleventh Circuit to file a second or successive motion. 

See, e.g., docs. 1646, 1660, and 1661 (report and recommendation as adopted and

judgment entered on October 20, 2005); docs. 1671 (adopting 1646 by reference), 1673

and 1674 (report and recommendation as adopted and judgment entered on December

1, 2005); and doc. 1692 (order of Eleventh Circuit denying leave to file second or

successive motion). 

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(citing Moody).4 "Because the alleged error is not 'fundamental,' it does not merit" the

extraordinary relief of audita querela. Id.

Indeed, this case is far less compelling even than Lowery, where the petitioner

was no longer in custody for § 2255 purposes. Defendant Davis remains in custody,

and it is hard to conceive of a guidelines error presenting circumstances compelling

action to achieve justice (so as to warrant the extraordinary remedy of audita querela),

which would not also demonstrate the kind of fundamental error which would allow that

claim to be considered under § 2255. If cognizable under § 2255, it could not be

brought by audita querela, and here, as a § 2255 claim, would be barred absent

authorization from the Eleventh Circuit.5 

Finally, the court does not construe this as a possible petition for writ of habeas

corpus pursuant to the "savings clause" of § 2255, allowing a prisoner to seek habeas

corpus if the § 2255 remedy "is inadequate or ineffective to test the legality of his

detention." § 2255(e). Nothing is alleged to bring this case arguably within the savings
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6

 Defendant would have to allege that his claim is based upon a retroactively

applicable Supreme Court decision, which establishes he was convicted for a

nonexistent defense, and that circuit law squarely foreclosed bringing the claim at the

time of trial, appeal, or first § 2255 motion. Wofford v. Scott, 177 F.3d 1236, 1244 (11th

Cir. 1999); Flint v. Jordan, 514 F.3d 1165, 1167-68 (11th Cir.), cert. denied, 129 S.Ct.

222 (2008) (as there was no retroactively applicable Supreme Court decision, the

court's inquiry ended at the first step of Wofford). 

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clause,6 and this court lacks jurisdiction as Defendant is incarcerated in Mississippi. 

Rumsfeld v. Padilla, 542 U.S. 426, 443, 124 S.Ct. 2711, 2722, 159 L.Ed.2d 513 (2004);

see also, Lee v. Wetzel, 244 F.3d 370, 373-374 and n. 3 (5th Cir. 2001) (sentencing

court does not have jurisdiction to consider the merits of a § 2241 petition brought under

the savings clause, unless the petitioner or his custodian is also located there).

It is therefore respectfully RECOMMENDED that the petition for writ of audita

querela filed by Marlin Davis, doc. 1895, be SUMMARILY DENIED. 

IN CHAMBERS at Tallahassee, Florida, on July 20, 2009.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.