IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50232

UNITED STATES OF AMERICA,

Plaintiff-Appellant

v.

GUADALUPE ALVARADO GALINDO,

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:02-CR-43-1

Before SMITH, COSTA, and HO, Circuit Judges.

PER CURIAM:*

Guadalupe Alvarado Galindo, federal prisoner # 27066-180, moves for 

leave to proceed in forma pauperis (IFP) on appeal from the denial of his 

petition for a writ of audita querela. He also moves for a certificate of 

appealability (COA), but a COA is not required to appeal the denial of a writ 

of audita querela. See 28 U.S.C. § 2253(c)(1). Accordingly, we deny his motion 

for a COA as unnecessary.

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 5, 2020

Lyle W. Cayce

Clerk

 Case: 19-50232 Document: 00515404806 Page: 1 Date Filed: 05/05/2020
No. 19-50232

2

By moving for leave to proceed IFP on appeal, Galindo is challenging 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).

Galindo first argues that the statutory enhancement of his sentence

pursuant to 21 U.S.C. § 841(b)(1)(A) and 21 U.S.C. § 851 has become improper 

in light of Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United 

States, 136 S. Ct. 2243 (2016). Because he may seek redress of this claim in a 

motion under 28 U.S.C. § 2255, a writ of audita querela, if it still exists in 

criminal cases, would not be available for the claim. See United States v. 

Miller, 599 F.3d 484, 488 (5th Cir. 2010). Furthermore, Galindo’s inability to 

meet the requirements for filing a second or successive § 2255 motion would

not render the § 2255 remedy unavailable for purposes of audita querela. See

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

The remaining claims raised by Galindo also fall outside the scope of 

relief a writ of audita querela could provide. Whereas audita querela “can only 

be available where there is a legal objection to a judgment which has arisen 

subsequent to that judgment,” Miller, 599 F.3d at 488, Galindo’s claims that 

the district court miscalculated his criminal history points and failed to engage 

in the colloquy required under § 851(b) allege errors that arose before his 

criminal judgment was entered. Additionally, Galindo’s arguments that 

different prosecutorial policies would be in effect if he were sentenced today, in 

light of memoranda by former Attorney General Eric Holder, does not allege 

that his criminal judgment has become infirm legally. See id.

 Case: 19-50232 Document: 00515404806 Page: 2 Date Filed: 05/05/2020
No. 19-50232

3

Galindo 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. His motion for 

leave to proceed IFP is DENIED, his motion for a COA is DENIED as 

unnecessary, and his appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2; 

Baugh, 117 F.3d at 202 & n.24.

 Case: 19-50232 Document: 00515404806 Page: 3 Date Filed: 05/05/2020