United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge
case is before the Court on James Henry Kessler's
petition for a writ of audita querela (Doc. # 41)
and motion for modification or reduction of sentence (Doc. #
40), the government's response (Doc. # 55), and
Kessler's Traverse to the Government's response (Doc.
# 61) and addendum to the traverse (Doc. # 65). Having
considered the motion and petition, the response, the
traverse and addendum, the record, and all the arguments and
authorities submitted by the parties, the Court concludes
that Kessler's motion should be denied, and his petition
should be granted in part. The reasons for this conclusion
January 19, 2007, the United States charged Kessler with
participating in a RICO conspiracy as an associate of the
Texas Syndicate prison gang. The specific acts he committed
in furtherance of the conspiracy were robbery, attempted
robbery, and distribution and possession with intent to
distribute cocaine, as well as conspiracy to possess with
intent to distribute cocaine. See Criminal
Information (Doc. # 1). Kessler pled guilty on March 27,
2007. On September 9, 2009, he was sentenced to 180 months in
prison. The judgment stated that Kessler should receive
credit for time served in federal detention in connection
with this prosecution, beginning on January 17, 2008.
See Judgment (Doc. # 36).
Applicable Legal Standards
of audita querela is
a common law writ constituting the initial process in an
action brought by a judgment defendant to obtain relief
against the consequences of the judgment on account of some
matter of defense or discharge arising since its rendition
and which could not be taken advantage of otherwise.
BLACK'S LAW DICTIONARY 131 (6th ed. 1990). “It is
an open question whether the obsolescent writ survives as a
post-conviction remedy.” United States v.
Banda, 1 F.3d 354, 356 (5th Cir. 1993). In United
States v. Reyes, 945 F.2d 862 (5th Cir. 1991), the Fifth
Circuit noted the definition of this writ, and observed that
“audita querela [is] a means of attacking a
judgment that was correct at the time rendered but which is
rendered infirm by matters which arise after its
rendition.” Id. at 863 n.1.
requests retroactive application of an amendment to the
United States Sentencing Guidelines. He also asks the Court
to credit him for time served on a state charge related to
his federal conviction, and to amend the judgment in this
case to conform it to the Court's oral statements
regarding credit for time served.
motion for modification, Kessler argues that Amendment 782 to
the Sentencing Guidelines makes him eligible for a 2-level
downward adjustment. He asks this Court to apply the
amendment retroactively to his case.
782 lowers the penalty for certain drug offenses by 2 levels.
Kessler was convicted for violating the RICO Act, not for a
narcotics offense. While drug-related crimes underlie the
RICO conspiracy, Kessler's conviction is for the RICO
conspiracy, not for the drug-related crimes. Therefore, the
amendment is inapplicable to him.
addition, Kessler's 180 month sentence, based on an
offense level of 42, is well below the guidelines range of
360 months to life. Even if Kessler's offense level is
reduced to 40 under Amendment 782, the guidelines range is
324 to 405 months, still well above Kessler's actual
sentence. Thus, even if Amendment 782 applied to this case,
it would provide no ...