United States v. David Romo
698 F. App'x 241
| 5th Cir. | 2017Background
- David Romo, a federal prisoner, moved for leave to proceed in forma pauperis (IFP) to appeal the denial of his writ of audita querela challenging his drug-conspiracy sentence.
- He was sentenced after a 21 U.S.C. § 851 enhancement based on a prior conviction characterized under 21 U.S.C. § 802(44) as a “felony drug offense.”
- Romo argued the § 851 enhancement violated due process and equal protection because § 802(44) is unconstitutionally vague and because his prior offense does not categorically match a CSA felony per Mathis, Moncrieffe, and Hinkle.
- He also argued that dismissing his audita querela amounted to an unconstitutional suspension of the writ.
- The district court dismissed the petition for lack of jurisdiction; the Fifth Circuit reviewed whether Romo’s appeal is taken in good faith (i.e., nonfrivolous) and whether audita querela was an available remedy.
- The Fifth Circuit concluded Romo had not shown audita querela was appropriate because the statutory remedy under 28 U.S.C. § 2255 governs and remains “available” even if successive-motions requirements would bar relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of audita querela | Romo: audita querela can remedy sentencing defects based on post-sentencing law | Govt: where statute (§ 2255) addresses the issue, All Writs Act/audita querela is not available | Court: audita querela unavailable because § 2255 is the controlling statutory remedy |
| Vagueness of § 802(44) definition | Romo: § 802(44)’s definition of “felony drug offense” is unconstitutionally vague | Govt: statutory framework controls; challenge belongs in § 2255 proceedings | Court: claim not cognizable via audita querela; must be pursued under § 2255 |
| Categorical-matching (Mathis/Moncrieffe/Hinkle) | Romo: prior offense does not categorically match a CSA felony, so § 851 enhancement unconstitutional | Govt: sentencing enhancements challenged through § 2255; audita querela improper | Court: same—relief, if any, is via § 2255; audita querela dismissal not error |
| Suspension of the writ claim | Romo: dismissal of audita querela suspended the writ unlawfully | Govt: procedural posture bars audita querela; § 2255 available | Court: no suspension— § 2255 remains the available remedy; audita querela dismissal proper |
Key Cases Cited
- Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997) (standard for certifying appeal not taken in good faith)
- Howard v. King, 707 F.2d 215 (5th Cir. 1983) (good-faith inquiry limited to whether appeal is arguable on its merits)
- Carlisle v. United States, 517 U.S. 416 (1996) (where statute addresses an issue, it supersedes All Writs Act relief)
- United States v. Miller, 599 F.3d 484 (5th Cir. 2010) (availability of § 2255 bars audita querela relief)
- United States v. Orozco-Ramirez, 211 F.3d 862 (5th Cir. 2000) (procedural limits on collateral remedies)
- In re Lott, 838 F.3d 522 (5th Cir. 2016) (standards for successive § 2255 motions)
- Tolliver v. Dobre, 211 F.3d 876 (5th Cir. 2000) (§ 2255 is considered available even when procedural bars may apply)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical approach to matching prior offenses)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach and application to immigration/controlled-substances analysis)
- United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) (application of categorical approach to controlled-substance predicates)