United States v. Quintieri, No. 13-464-cr (2d Cir. Dec. 2, 2013) (Kearse, Jacobs, and Parker) (summary order) (as amended), available here

A writ of audita querela is an extraordinary remedy under the All Writs Act, 28 U.S.C. Section 1651(a), and is generally available only if the absence of any avenue of collateral attack would raise serious questions about the laws limiting those avenues. The writ is generally not available to review a criminal conviction if the petitioner could have raised his or her claims in a motion under 28 U.S.C. Section 2255.

Quintieri sought the writ because, at his sentencing for possessing a counterfeit check, his attorney requested (and obtained) a prison sentence of a year-and-a-day (366 days), rather than a year-minus-a-day (364 days). Quintieri claimed the lower sentence would have not subjected him to automatic removal from the United States for having committed an aggravated felony.

The panel held that the extraordinary writ of audita querela was not available because Quintieri's claim -- essentially one of ineffective assistance of counsel -- could have been raised on direct appeal or under Section 2255.

Commentary: A sentence of a year-and-a-day is often better for a defendant than a sentence of a year because the additional day potentially renders the defendant eligible for "good time" credit while in prison. See 18 U.S.C. Section 3624(b) (BOP may award good-time credit "to a prisoner who is serving a term of imprisonment of more than 1 year"). If the defendant ultimately receives "good time" credit, an imposed sentence of a-year-and-a-day will result in an actual sentence served of only about ten months. Despite this benefit, this summary order suggests that sometimes a sentence of 364 months will be in a non-citizen defendant's best interests, because of the immigration consequences.