DLD-300 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-3065

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UNITED STATES OF AMERICA,

v.

EDWIN RODRIGUEZ,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 94-cr-00192)

District Judge: Honorable Lawrence F. Stengel

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Submitted for Possible Summary Action Pursuant to

Third Circuit LAR 27.4 and I.O.P. 10.6

September 29, 2011

Before: FISHER, BARRY and VAN ANTWERPEN, Circuit Judges

(Filed: October 5, 2011)

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OPINION

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PER CURIAM

Edwin Rodriguez, a pro se inmate, appeals the order of the District Court denying 

his petition for a writ of audita querela. Because we conclude that this appeal presents no 

substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
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I.

Following a 1996 jury trial in the United States District Court for the Eastern 

District of Pennsylvania, Edwin Rodriguez was convicted of conspiracy to distribute 

cocaine and was sentenced as a career offender to 360 months in prison. This Court 

affirmed. See United States v. Rodriguez, 168 F.3d 480 (Table) (3d Cir. 1998) (No. 97-

1937). Rodriguez then filed a motion to vacate his sentence under 28 U.S.C. § 2255, 

which the District Court denied after conducting an evidentiary hearing. We denied his 

request for a certificate of appealability. (C.A. No. 01-3908.)

Rodriguez has filed several additional post-conviction motions, including two 

applications pursuant to 28 U.S.C. § 2244 to file a successive § 2255 motion, all of which 

have been unsuccessful. On December 14, 2010, he filed a petition for a writ of audita 

querela under the All Writs Act, 28 U.S.C. § 1651, in the District Court, claiming that he 

was entitled to resentencing under United States v. Booker, 543 U.S. 220 (2005). The 

District Court denied the motion on July 12, 2011. Rodriguez filed a timely notice of 

appeal.

We have jurisdiction under 28 U.S.C. § 1291. Our review of a district court’s 

order granting or denying a petition for a writ of audita querela is plenary. See United 

States v. Gamboa, 608 F.3d 492, 494 (9th Cir. 2010); cf. Grider v. Keystone Health Plan 

Cent., Inc., 500 F.3d 322, 328 (3d Cir. 2007) (exercising plenary review of injunctions 

under All Writs Act).
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We agree with the District Court’s conclusion that Rodriguez may not seek 

sentencing relief though a petition for a writ of audita querela. “Where a statute 

specifically addresses the particular issue at hand, it is that authority, and not the All 

Writs Act, that is controlling.” Massey v. United States, 581 F.3d 172, 174 (3d Cir. 

2009) (internal quotation omitted). A motion pursuant to 28 U.S.C. § 2255 is the proper 

avenue to challenge his sentence. Id. We note that Rodriguez has already filed one such 

motion, which was unsuccessful, as well as two unsuccessful applications pursuant to 28 

U.S.C. § 2244 for authorization to file a successive § 2255 motion. Nevertheless, 

Rodriguez “may not seek relief through a petition for a writ of audita querela on the basis 

of his inability to satisfy the requirements of the Antiterrorism and Effective Death 

Penalty Act of 1996.” Id.

Because the appeal does not present a substantial question, we will summarily 

affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.