UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARCO A. HENDRICKSON, Defendant - Appellant. No. 19-5050 (D.C. No. 4:08-CR -00197-JHP-2) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ Marco Hendrickson, a federal prisoner pr oceeding pro se, appeals the district court’s denial of his petition for a writ of audita querela under 28 U.S.C. § 1651. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I Hendrickson pled guilty to armed robbery in violation of 18 U.S.C. § 1951, also known as “Hobbs Act robbery,” and posse ssion of a firearm in furtherance of a

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 10, 2020 Christopher M. Wolpert Clerk of Court2 crime of violence in violati on of 18 U.S.C. § 924(c). He received an enhanced sentence under the career-offender guideline, which applies when a defendant has “two prior felony convictions of either a crime of violence or a controlled substance offense,” U.S. Sentencing Guidelines Ma nual § 4B1.1(a). The district court sentenced him to 271 months’ imprisonment: 151 months for his Hobbs Act robbery conviction and 120 months for his § 924(c) conviction, to run consecutively. Hendrickson did not file a timely notice of app eal, so we dismissed hi s direct appeal. Hendrickson has filed three motions under 28 U.S.C. § 2255. His first motion asserted that his counsel provided ineffect ive assistance. Afte r the district court denied that § 2255 motion, we granted a ce rtificate of appealab ility and ultimately affirmed the denial. Later, we granted authorization for Hendrickson to file a second § 2255 motion to challenge his career-offe nder sentence based on Johnson v. United States, 135 S. Ct. 2551 (2015). The district court denied that authorized motion based on the Supreme Court’s ruling in Beckles v. United States, 137 S. Ct. 886 (2017). We also granted authorization for Hendrickson to file a successive § 2255 motion to challenge his § 924( c) conviction based on Unite d States v. Davis, 139 S. Ct. 2319 (2019). Hendrickson has not yet filed his aut horized motion with the district court. In 2018, Hendrickson filed a pro se petit ion for a writ of audita querela. He argues that United States v. O’Connor, 8 74 F.3d 1147 (10th Cir. 2017), constituted an intervening change in the law that rendered his career-offender enhancement improper. In O’Connor, we held that a conviction for Hobbs Act robbery does not3 qualify as a “crime of violence” under U.S.S.G. § 4B1.2. 874 F.3d at 1158. The district court denied Hendric kson’s petition after concl uding that (1) the petition attempted to vacate, set aside, or correct his sentence or to otherwise challenge his convictions; and (2) § 2255 is the proper av enue for this type of post-conviction challenge. Hendrickson filed this appeal. 1

II Hendrickson challenges the district court’ s denial of his petition for a writ of audita querela. He asks us to vacate the district court’s judgment and to remand for resentencing without the care er-offender enhancement. “[A] writ of audita querela is used to challenge a j udgment that was correct at the time rendered but which is rendered infirm by matters wh ich arise after its rendition.” United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002) (quotation omitted); see also Rawlins v. Kansas, 714 F.3d 1189, 1196 (10th Cir. 2013) (“[A]udita querela a ddresses unanticipated situ ations that arise after judgment.”). We have acknowledged that a cr iminal defendant may be able to obtain post-conviction relief through a writ of audita querela. See, e.g., Torres,

1 It is unclear whether Hendrickson filed his notice of appeal before the fourteen-day deadline set fo rth in Rule 4(b)(1)(A)(i) of the Federal Rules of Appellate Procedure. When he filed the notice, he incl uded a statement that he was in lockdown and did not receive the distri ct court’s order until over two months had passed. We do not assess th e timeliness of this appeal because the government does not contest it. The timely filing of a notice of appeal by th e defendant is an “inflexible claim-processing ru le[]” that “may be forfeited if not properly raised by the government.” United States v. Gar duño, 506 F.3d 1287, 1290-91 (10th Cir. 2007) (quotation omitted).4 282 F.3d at 1245 n.6. Even so, we have made clear that it is “not available to a petitioner when other remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255.” Id. at 1245 (quotation omitte d). We have also held that § 2255 provides “[t]he exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective. ” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (quotation omitted). Courts have f ound the remedy under § 2255 “to be inadequate or ineffective only in extremely limited circum stances.” Id. “That [the petitioner] may be barred from filing a second or successive motion pursuant to § 2255 in the sentencing court does not es tablish that the remedy provided in § 2255 is inadequate or in effective.” Id. As shown above, Hendr ickson is familiar with th e process for filing § 2255 motions. Yet he does not expl ain why § 2255 provides an inadequate or ineffective remedy for challenging his sentence. He states only that his career-offender enhancement is “unlawful” in light of O’ Connor and that his petition for a writ of audita querela is necessary to “fill[] gaps in the current system of post-conviction relief.” Hendrickson cannot avoid the re quirements for filing a successive § 2255 motion with these vague statements. We look beyond the title of a pleading f iled under § 1651(a) to its substance because allowing a petitioner “to avoid th e bar against successive § 2255 petitions by simply styling a petition under a different name would severely erode the procedural restraints imposed under 28 U.S.C. §§ 2244(b)(3) and 2255.” Torres, 282 F.3d at 1246. We agree with the district cour t that the proper avenue for Hendrickson’s5 challenge to the lawfulness of his senten ce is § 2255. We make no comment on his ability to obtain authorization under § 22 55(h) to file a successive § 2255 motion because he has not sought such authorization from this court. 2

III AFFIRMED . We GRANT Hendrickson’s motion fo r leave to proceed in forma pauperis.

Entered for the Court

Carlos F. Lucero Circuit Judge

2 We note that the standard for authoriza tion of a successive motion is distinct from both the audita querela standard and the standard for fi ling an initial § 2255 motion. See § 2255(h) (“A second or su ccessive motion must be certified as provided in [§ 2244] . . . to contain—(1) newly discove red evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing eviden ce that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional la w, made retroactive to cases on collateral review by the S upreme Court, that was previously unavailable.”).