v.
United States
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 19, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 03-50087
Summary Calendar
BUDDY RAY GUNN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CV-184-EP
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Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:[1]
Buddy Ray Gunn, federal prisoner # 11525-080, appeals the dismissal of his petition for a writ of audita querela seeking to be resentenced as a non-career offender. He argues that the district court erred in determining that his claim was procedurally defaulted because he is actually innocent of the career offender sentence. Gunn argues that in light of this court’s decision in United States v. Bellazerius, 24 F.3d 698 (5th Cir. 1994), his prior drug conspiracy conviction was improperly used to categorize him as a career offender under U.S.S.G. § 4B1.1.
It is doubtful that Gunn can rely on the writ of audita querela to obtain relief because he had other procedural vehicles available in which to raise his claim under Bellazerius. See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993).
Even assuming that the writ is available to him, Gunn is not entitled to relief because he has not demonstrated that he is actually innocent of the offense that was used to support the application of the career offender guideline. See Kinder v. Purdy, 222 F.3d 209, 211-13 (5th Cir. 2000); United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999).
The dismissal of the writ is AFFIRMED.