United States of America v. Sixto Lizardo

CLD-137 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4533
___________
UNITED STATES OF AMERICA
v.
SIXTO LIZARDO,
Appellant
___________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Crim. No. 99-cr-00385-001)
District Judge: Honorable Ronald L. Buckwalter
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 4, 2010
Before: BARRY, FISHER and STAPLETON, Circuit Judges
(Opinion filed: March 23, 2010)
_________
OPINION
_________
PER CURIAM
Sixto Lizardo, a federal prisoner proceeding pro se, appeals an order of the United
States District Court for the Eastern District of Pennsylvania dismissing his petition for a
writ of audita querela. We will affirm the District Court’s order.

-- 1 of 3 --

2
In 2000, after a jury trial, Lizardo was convicted of one count of conspiracy and
three counts of distribution of cocaine. He was sentenced to 240 months in prison. We
affirmed Lizardo’s conviction in 2002. See C.A. No. 01-2810. In 2005, Lizardo sought
relief in District Court under United States v. Booker, 543 U.S. 220 (2005), asserting that
the court, rather than a jury, determined the quantity of drugs involved in his crime. The
District Court denied relief and we affirmed. See C.A. No. 05-4505. In 2007, Lizardo
filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).
We affirmed the District Court’s denial of relief. See C.A. No. 07-4795.
Lizardo then filed a petition for a writ of audita querela in District Court. Lizardo
again asserted that his sentence was improperly imposed based on a drug amount
determined by the court, not the jury. Lizardo stated that he is time-barred from filing a
motion pursuant to 28 U.S.C. § 2255 and that a writ of audita querela is his only available
avenue of relief. Noting our decision in Massey v. United States, 581 F.3d 172 (3d Cir.
2009) (per curiam), the District Court dismissed the petition. This appeal followed.
In Massey, a federal prisoner filed a petition for a writ of audita querela seeking to
challenge his sentence under Booker. The prisoner argued that the sentencing court might
have imposed a shorter sentence if the court had not viewed the sentencing guidelines as
mandatory. We held that the prisoner could not seek relief through a petition for a writ of
audita querela because his claim was cognizable under § 2255. Massey, 581 F.3d at 174.
We explained that the prisoner could not resort to a writ of audita querela based on his

-- 2 of 3 --

inability to satisfy the requirements for filing a § 2255 motion under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Id. The same is true here. Lizardo’s
claim is cognizable under § 2255. Lizardo may not seek relief through a petition for a
writ of audita querela based on his inability to satisfy AEDPA’s gatekeeping
requirements.
Accordingly, because this appeal does not present a substantial question, we will
affirm the District Court’s order.
3

-- 3 of 3 --