US v. Michael McRae, No. 09-7881 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7881 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL SCOTT MCRAE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:97-cr-00094-H-6) Submitted: December 17, 2009 Decided: December 31, 2009 Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael Scott McRae, Appellant Pro Se. Rudolf A. Renfer, Jr., Robert Edward Skiver, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Scott McRae appeals the district court s order denying his petition for a writ of audita querela on the ground that United States v. Booker, 543 U.S. 220 (2005), did not apply retroactively to his case. no reversible McRae s claim error. on We have reviewed the record and find Although the merits, the we district find that court the addressed petition was tantamount to a successive motion under 28 U.S.C.A. § 2255 (West Supp. 2009), over which the district court lacked jurisdiction. The fact obtains that McRae cannot authorization from proceed this under court to § 2255 file unless a he successive motion does not alter our conclusion. See Carrington v. United States, 2007) 503 F.3d 888, 890 (9th Cir. ( [T]he statutory limits on second or successive habeas petitions do not create a gap in the post-conviction landscape that can be filled with the common law writs. ), opinion amended on other grounds on denial of reh g, 530 F.3d 1183 (9th Cir. 2008); United States v. Torres, audita 282 F.3d querela is 1241, not 1245 (10th available to Cir. a 2002) ( [A] petitioner writ when of other remedies exist, such as a motion to vacate sentence under 28 U.S.C.[A.] omitted). § 2255. ) (internal quotation marks and Accordingly, we affirm the denial of relief. citation We deny McRae s motions for appointment of counsel and for a transcript at government expense. We dispense with oral argument because 2 the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3
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