United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD, UNITED SLATES DISTRICT JUDGE
CASE is before the Court on Defendant Frederick
Bullard's petition under 28 U.S.C. § 1651, the All
Writs Act, for a writ of audita querela (Doc. 175, Petition),
as well as his “Cross Notice of Filing Motion to Recall
the Mandate and Request for Show Cause Order, ” (Doc.
179, Cross Notice). The Court has also considered
Bullard's counseled Supplement in Support of
Defendant's Petition for Writ of Audita Querela and Cross
Notice. (Doc. 192, Supplement). The essence of the Petition
and the Cross Notice is Bullard's contention that the
Court improperly classified him as a career offender under
the United States Sentencing Guidelines, U.S.S.G. §
4B1.1, resulting in an increased sentence. In the Petition,
Bullard asserts that post-conviction relief is not available
under 28 U.S.C. § 2255 or a writ of error coram nobis
because neither recognizes a sentencing guideline error as a
cognizable claim. Petition at 2. Bullard brought the Petition
and Cross Notice following the Court's denial of several
previous motions collaterally attacking his sentence. See
Bullard v. Haynes, No. CV211-052, 2012 WL 727343 (S.D.
Ga. Mar. 6, 2012); Bullard v. Vasquez, No. CIV. A.
CV206-182, 2006 WL 3791395 (S.D. Ga. Dec. 26, 2006);
United States v. Bullard, No. 3:91-cr-211-Oc-10GRL,
2005 WL 1026026 (M.D. Fla. Apr. 26, 2005).
8, 1992, the Court sentenced Bullard to a term of life in
prison after he was found guilty of conspiracy to distribute
cocaine, in violation of 21 U.S.C. § 846. (Doc. 95). The
Court imposed a life sentence because Bullard had a total
offense level of 44 and a Criminal History Category of VI
under then-mandatory, pre-Booker United States
Sentencing Guidelines. Bullard's total offense level
consisted of a base offense level of 42, because the offense
involved over 15 kilograms of cocaine base (80 kilograms to
be exact), see Presentence Investigation Report
(PSR) at ¶ 34, and a two-level enhancement for being an
organizer, leader, manager, or supervisor, id. at
¶ 37. Bullard's Criminal History Category
was VI because the Court deemed him to be a career offender
under U.S.S.G. § 4B1.1.
direct appeal, Bullard challenged the career offender
enhancement, and the United States conceded it was erroneous.
United States v. Bullard, 83 F.3d 435 (11th Cir.
1996), Brief of Appellee United States, 1995 WL
17144055, at *45. However, the United States argued that the
error was harmless. The career offender classification did
not affect Bullard's offense level of 44, which was based
on the drug quantity and the role enhancement. Instead, the
career offender classification only increased Bullard's
Criminal History Category from IV to VI. The United States
pointed out that this made no difference to Bullard's
sentence, because the Guidelines in effect at the time
required a life sentence where the offense level was 44,
regardless of the Criminal History Category. Id. at
45-47. Thus, the United States urged that “the error
was harmless, and Bullard's sentence should not be
vacated.” Id. at 46-47. Nevertheless, the
United States suggested that the Eleventh Circuit Court of
Appeals issue a limited remand requiring this Court to amend
the judgment to reflect a Criminal History Category of IV.
The Eleventh Circuit affirmed Bullard's conviction and
sentence, but it did not issue the limited remand.
Bullard, 83 F.3d 435. As such, Bullard's career
offender enhancement remained, and his Criminal History
Category remained VI.
Bullard moved for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) and Amendment 505 to the United States
Sentencing Guidelines. Amendment 505 amended the
Guidelines' drug quantity table, U.S.S.G. §
2D1.1(c), by reducing the highest base offense level from 42
to 38. As a result of Amendment 505, a base offense level of
38 applied to any offense involving 1.5 kilograms or more of
cocaine base. Because of the change, Bullard's total
offense level was reduced from 44 to 40 (a base offense level
of 38, plus 2 levels for the role enhancement). With an
offense level of 40 and a Criminal History Category of VI,
the Guidelines called for a sentence of 360 months-to-life.
U.S.S.G. § 5A (Sentencing Table) (1998). Notably, the
Guidelines would have called for the same sentencing range
had Bullard's Criminal History Category been Category IV.
Court granted the motion for a reduced sentence on January
19, 1999. (Doc. 111). The Court reduced Bullard's
sentence from life in prison to 480 months. (Id.).
Bullard appealed because he wanted his sentence reduced to
the bottom end of the amended Guidelines range. The Eleventh
Circuit Court of Appeals affirmed the Court's decision on
June 6, 2001. (Doc. 128).
addition to the motion for a sentence reduction, Bullard
filed various other motions: a Motion to Vacate pursuant to
28 U.S.C. § 2255, denied on June 22, 2001 (Doc. 130); a
Motion to Correct Illegal Sentence, denied on April 26, 2005
(Doc. 141); a Motion to Preserve Booker Claim, denied on
January 20, 2006 (Doc. 147); and a Motion to Amend/ Correct
Judgment, denied on October 6, 2006. (Doc. 151).
February 28, 2008, the Court sua sponte issued the
government an Order Directing Response on Retroactive
Application of Crack Cocaine Amendment. (Doc. 152)
(concerning the effect of Amendment 706). The United States
responded that no sentence reduction was available under
Amendment 706 because Bullard's offense involved 80
kilograms of cocaine base. (Doc. 156). Even after Amendment
706, a base offense level of 38 still applied if more than
4.5 kilograms of cocaine base were involved. On June 30,
2008, Bullard filed his own Motion for Retroactive
Application of Sentencing Guidelines to Crack Cocaine Offense
pursuant to 18 U.S.C. § 3582, or in the Alternative for
a Writ of Audita Querela. (Doc. 165). The Court denied the
motion on October 1, 2008. (Doc. 171). In doing so, however,
the Court cited Bullard's classification as a career
offender as the reason why Amendment 706 did not apply,
rather than the fact that Bullard's offense involved 80
kilograms of cocaine base. (Doc. 171). Upon denial of the
aforementioned motion, Bullard moved for reconsideration,
which was also denied. (Doc. 173).
now files the instant Petition for Writ of Audita Querela
(Doc. 175) and “Cross Notice” (Doc. 179). A writ
of audita querela is an extraordinary common law writ that
may provide post-conviction remedies where relief is not
cognizable under 28 U.S.C. § 2255. United States v.
Holt, 417 F.3d 1172, 1175 (11th Cir. 2005). A federal
court's authority to “recognize common law
postconviction remedies pursuant to the All Writs Act, 28
U.S.C. § 1651, is governed by the Supreme Court's
decision in United States v. Morgan.”
Holt, 417 F.3d at 1174 (citing United States v.
Morgan, 346 U.S. 502 (1954)). The principle emerging
from Morgan is that “federal courts may
properly fill the interstices of the federal postconviction
remedial framework through remedies available at common
law.” Holt, 417 F.3d at 1175 (citing
United States v. Ayala, 894 F.2d 425, 428 (D.C. Cir.
1990)). However, where post-conviction relief is cognizable
under 28 U.S.C. § 2255, a federal prisoner may not use a
writ of audita querela to mount a collateral attack.
Holt, 417 F.3d at 1175.
relief is available to a federal prisoner under 28 U.S.C.
§ 2255 where the sentence was imposed in violation of
the Constitution or laws of the United States, the court was
without jurisdiction to impose the sentence, the sentence
exceeded the maximum authorized by law, or the sentence
“is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). “‘[A] writ of audita
querela may not be granted when relief is cognizable
under § 2255,' regardless of whether a § 2255
motion would have succeeded.” United States v.
Izquierdo, 436 Fed.Appx. 929, 931 (11th Cir. 2011)
(quoting Holt, 417 F.3d at 1175).
Eleventh Circuit has affirmed the denial of audita
querela relief where a prisoner tried to use such a writ
to challenge a Guidelines error. United States v.
Frank, 414 Fed.Appx. 252 (11th Cir. 2011) (prisoner
could not use audita querela to challenge his career
offender designation because he could have done so through a
28 U.S.C. § 2255 motion); United States v.
Davis, 352 Fed.Appx. 314 (11th Cir. 2009) (prisoner
could not use audita querela to challenge district
court's enhancement of his Guidelines base offense level
because he was challenging the legality of his sentence,
which is cognizable under 28 U.S.C. § 2255).
Frank and Davis, however, were rendered
before the Eleventh Circuit decided Spencer v. United
States, 773 F.3d 1132 (11th Cir. 2014) (en banc). In
Spencer, the Eleventh Circuit held that a challenge
to an erroneous career offender classification is
not cognizable under § 2255. Id. at
1138 (“[T]he error alleged in this appeal - erroneously
designating a defendant as a career offender - is not a
fundamental defect that inherently results in a complete
miscarriage of justice.”). Spencer thus
eliminated an assumption underlying Frank and
Davis, i.e., that a prisoner could challenge a
Guidelines error through a 28 U.S.C. § 2255 motion.
raises the following question: if a challenge to a Guidelines
error is not cognizable under 28 U.S.C. § 2255,
must the writ of audita querela be available to
remedy an erroneous career offender classification? Not
necessarily. Even in a post-Spencer opinion, the
Eleventh Circuit affirmed the denial of an audita
querela petition that challenged, among other things, a
Guidelines miscalculation because “[s]ection 2255
provides the exclusive remedy ...