UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff

− Appellee,

v. JESSIE AILSWORTH, JR., Defendant

− Appellant. No. 12-3342 (D.C. No. 5:94-CR-40017-SAC-1) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , HOLMES , and MATHESON , Circuit Judges.

Jessie Ailsworth, Jr., a federal prisoner proceeding pr o se, seeks to appeal the district court’s dismis sal for lack of jurisdiction of his petition for a writ of audita querela under 28 U.S.C. § 1651 (All Writ s Act). We deny a certificate of appealability (COA) and di smiss this proceeding. Background Ailsworth was convicted by a jury of drug-trafficking and other offenses in 1996 and was sentenced to 360 months’ imprisonment and ten years’ supervised

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 14, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - release. The length of his prison sentence was based, in part, on the district court’s finding that twelve kilograms of cocaine base were attributable to him. After an unsuccessful a ppeal to this court, see United States v. Ailsworth , 138 F.3d 843 (10th Cir. 1998) , he filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his senten ce. The district court gran ted him partial relief based on the government’s failure to fi le an information stating th e prior convictions that it would rely on in seeking a sentence e nhancement, as re quired by 21 U.S.C. § 851(a)(1). See United States v. Ailsworth , 206 F. Supp. 2d 1148, 1152-54 (D. Kan. 2002). The government initially asserted th at it had filed the information required by § 851(a)(1), and the distri ct court therefore ordered an evidentiary hearing. See id. at 1154. But the government later confessed error and moved the court to amend Ailsworth’s sentence. The district court ha d determined that “[t]he only part of the defendant’s sentence affected by a prior conviction that would trigger the § 851 notice requirement was the term of supervised release” b ecause Ailsworth’s “term of custody was not enhanced as a result of any prior convictions subject to § 851 notice.” Id. at 1152 & n.1 (footnote omitted). The court therefore entered an amended judgment on September 12, 2002, re ducing Ailsworth’s term of supervised release from ten years to fi ve years. We denied hi s application for a COA. In 2006, Ailsworth sought authorizati on from this court to file a second or successive § 2255 motion arguing that his sentence violated United States v. Booker , 543 U.S. 220 (2005). We de nied authorization because Booker was not made- 3 - retroactive to cases on collateral review. In 2008, he moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), seeking retroactive applicati on of an amendment to the sentencing guidelines applicable to crack cocai ne offenses. The di strict court denied the motion, and we affirmed. Ailsworth’s petition for a writ of audita querela under the All Writs Act is his latest attempt to obtain a reduction of his prison sentence. He argued that, in ruling on his § 2255 motion and finding error wi th respect to the § 851 sentencing enhancement, the district c ourt was required to vacate his entire sentence and proceed with resentencing, rather than amending the judgment to reduce only his term of supervised release. He asse rted that, due to the Suprem e Court’s intervening decision in Apprendi v. New Jersey , 530 U.S. 466 (2000), his prison sentence would have been shortened upon resentencing in 2002. Specifically, he cont ended that he could not be resentenced based on the district court’s finding that twelve kilograms of crack cocaine were attributable to him when the jury only found him guilty of crack cocaine offenses involving 33. 81 grams. Ailsworth mainta ined that, since 2002, he has been serving an unconstitutional sentence under Apprendi . The district court concluded that Ailsworth’s petition was an unauthorized second or successive § 2255 motion and dismissed it for lack of jurisdiction. Discussion Ailsworth must obtain a COA to pursue an appeal. See United States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court’s ruling- 4 - rests on procedural grounds, he must show both “that ju rists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it de batable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (emphasis added). Ails worth meets one, but not both, parts of this standard. Addressing the second part, we conclude that jurist s of reason would find it debatable whether the district court’s procedural ruling in th is case was correct. As a result of Ailsworth’s first § 2255 motion, the court entered an amended judgment reducing the length of his term of supervised release. In Magwood v. Patterson , the Supreme Court held that “where . . . ther e is a new judgment intervening between the two habeas petitions, an application ch allenging the resulting new judgment is not ‘second or successive’ at all.” 130 S. Ct . 2788, 2802 (2010) (c itation and quotation omitted). The Court’s decision addressed the meaning of “second or successive” in 28 U.S.C. § 2244(b), as it a pplies to habeas petitions under 28 U.S.C. § 2254. See Magwood , 130 S. Ct. at 2796-97. It concluded that use of the term “judgment” in § 2254(b) was “significant” and held “that the phrase ‘s econd or successive’ must be interpreted with respect to the judgment challenged.” Id. at 2797. We have applied the holding in Magwood to conclude that a § 2255 motion filed after an amended judgm ent was not second or successive under § 2255(h). See United States v. McGaughy , 670 F.3d 1149, 1159 n.7 ( 10th Cir. 2012) (citing Magwood and concluding, without fu rther discussion, that a second § 2255 claim was- 5 - not second or successive “b ecause it relate[d] to a new sentence”). Three of our sister circuits have also extended the applicability of Magwood to motions under § 2255. See Suggs v. United States , 705 F.3d 279, 282-85 (7th Cir. 2013); In re Lampton , 667 F.3d 585, 587-90 (5th Cir. 2012); Johnson v. United States , 623 F.3d 41, 45-46 (2d Cir. 2010). Ails worth’s petition for a writ of audita querela challenged the district court’s entry of the amended judgment without first providing him a full resentencing. Under the holding in Magwood , it is debatable whether the district court was correct in deeming his petition to be an unaut horized second or successive § 2255 motion because he had not previous ly filed a § 2255 motion challenging the amended judgment. To obtain a COA, however, Ailsworth must also demonstrate that reasonable jurists would debate whether his petition states a valid claim of the denial of a constitutional right. He conte nds that he was entitled to a full resentencing once the district court determined it had erred in enhancing his senten ce. He asserts, In 2002 Ailsworth challenged his sentence, [arguing that it] had been impermissibly enhanced via application of a 21 U.S.C. § 851 enhancement that should not have been applied. The GOVERNMENT CONFESSED ERROR! The 28 U.S. C. § 2255 challenge should have resulted in the 30 year sentence being VACATED, to the end that a resentencing would occur. This did not occur. Rather, the government orchestrated the District Court’ s amending the original judgment, affecting only Ailsworth’s supervised release, and af fecting nothing of the sentence of incarcerat ion originally imposed. Application for COA at 15. But Ailswort h does not dispute the district court’s conclusion that the § 851 error affected only his term of supe rvised release. He states- 6 - only that vacating the entire sentence is “w hat is done in 28 U.S. C. § 2255 cases.” Id. at 16. His contentions fail to make the showing necessary to obtain a COA because nothing about the distri ct court’s decision to ame nd the judgment with regard to his term of supervised release, rather th an grant him a full resentencing, implicates the denial of a constitutional right. Cf. Dulworth v. Jones , 496 F.3d 1133, 1138 (10th Cir. 2007) (den ying COA because district court’s denial of motion for costs did not implicate a denial of a constitutional right). Conclusion Because Ailsworth has not demonstrated w ith respect to his cl aim that “jurists of reason would find it deba table whether the petition stat es a valid claim of the denial of a constitutional right,” Slack , 529 U.S. at 484, we deny his application for a COA and dismiss the appeal. Ailsworth’s motion for l eave to proceed on appeal without prepayment of costs or fees is granted. His motion to compel a response from the United States is denied. Entered for the Court

ELISABETH A. SHUMAKER, Clerk