United States District Court, E.D. Kentucky, Northern Division, Covington
C. Reeves United States District Judge
January 24, 2019, the Court denied Defendant Lois Jochinton
Orta's motion for a sentence reduction under 18 U.S.C.
§ 3582 pursuant to the First Step Act of 2018
(“2018 Act”). [Record Nos. 647, 656] Thereafter,
he filed a petition for a writ of audita querela.
[Record No. 657] That motion is currently pending for
was convicted of numerous charges, including aiding and
abetting and possession with intent to distribute 29 ½
pounds of methamphetamine. [See Record No. 626.] He
was sentenced on March 9, 1999, to a term of life
imprisonment pursuant to 21 U.S.C. § 841 for aiding and
abetting and possession. [Record Nos. 352, 626] Orta was
subject to an enhanced statutory penalty of life imprisonment
because he had two prior felony convictions. [See
Record Nos. 625, 626.]
noted above, Orta filed the present petition for a writ of
audita querela to reduce his sentence his motion for
a sentence reduction was denied. [Record No. 657] He argues
that “a writ of Audita Querela is available to
administer equitable relief from his life sentence, though
Section 401 [of the 2018 Act] is not retroactive.”
[Id., p. 2] Orta further contends that he was
precluded from raising the amendment of 21 U.S.C. § 841
by the 2018 Act at the time of his sentencing, on direct
appeal, or at the time of his § 2255 motion.
[Id., p. 4] Additionally, he asserts that
“there may be no other remedy available  in this
criminal case to remedy relief from the life sentence
enhancement that is no longer enforced against defendants
similarly situated as petitioner with § 841
cases…” [Id.] But as explained below,
Orta is not entitled to relief on the grounds asserted in his
most recent filing.
a writ of audita querela is a common-law remedy that
provides relief in very limited circumstances in criminal
cases. It is “used to attack a judgment that was
correct when rendered, but that later became incorrect
because of circumstances that arose after the judgment was
issued.” Carrington v. United States, 503 F.3d
888, 890 n.2 (9th Cir. 2007); see also United States v.
LaPlante, 57 F.3d 252, 253 (2d Cir. 1995). Here, the
judgment was correct when it was rendered in 1999 and is
still correct today. Orta asserts that modification of 21
U.S.C. § 841 by the 2018 Act arose after the judgment
was rendered in his case and should be applied now. However,
the 2018 Act's modification of 21 U.S.C. § 841 does
not provide an applicable change in law because it is not
retroactive. Therefore, the 2018 Act does not apply to Orta
and does not present a change in circumstances that would
render the judgment incorrect.
the All Writs Act provides federal courts with the authority
to “issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages
and principles of law.” 28 U.S.C. § 1651(a). But
the authority of the All Wri ts Act is not unlimit ed.
Instead, it “is a residual source of authority to issue
writs that are not otherwise covered by statute. Where a
statute specifically addresses the particular issue at hand,
it is that authority, and not the All Writs Act, that is
controlling.” Pa. Bureau of Corr. v. U.S. Marshals
Serv., 474 U.S. 34, 43 (1985).
case, the issue at presented is the modification of an
imposed term of imprisonment. A federal statute, 18 U.S.C.
§ 3582(c), specifically permits a federal court to
modify a term of imprisonment in limited circumstances. One
circumstance the Court may consider is when a modification is
expressly permitted by statute. 18 U.S.C. §
3582(c)(1)(B). However, while the 2018 Act amended 21 U.S.C.
§ 841, it did not make the changes to 21 U.S.C. §
841 retroactive. Accordingly, 18 U.S.C. § 3582
specifically addresses the modification of an imposed term of
imprisonment, but as the Court explained in a previous order,
Orta is simply not eligible for relief under that statute.
[Record No. 656] Because a statute provides Orta with a
process to request modification of his sentence, a writ of
audita querela is not appropriate. Pa. Bureau of
Corr., 474 U.S. at 43.
a writ of audita querela “requires
satisfaction of the judgment, [and] it can only be used when
the petitioner has served his or her sentence and has been
released from custody.” Frost v. Snyder, 13
Fed. App'x 243, 246 n. 1 (6th Cir. 2001). Orta is
currently serving his sentence of life imprisonment. As a
result, he has not satisfied his judgment, served his
sentence, or been released from custody. Therefore, even
without another basis for denial of the relief Orta requests,
a writ of audita querela cannot be granted in the
upon the foregoing, it is hereby
that Defendant Lois Jochinto Orta's petition for a writ
of audita querela [Record No. 657] is
DENIED. The Court further
CERTIFIES that any appeal taken from this