Hector Orlansky v. United States , 627 F. App'x 915 ( 2015 )

Case: 14-15581 Date Filed: 12/28/2015 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15581
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-23005-KAM
HECTOR ORLANSKY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 28, 2015)
Before WILSON, MARTIN and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Hector Orlansky, a federal prisoner proceeding pro se, appeals the district
court’s denial of his petition for a writ of audita querela filed pursuant to 28 U.S.C.
§ 1651, by which he sought to reduce his restitution obligations. The district court
denied Orlansky’s petition after finding that the restitution order did not have any
legal defect and that the court in his underlying criminal proceeding had the power
to reduce his restitution obligations pursuant to 18 U.S.C. § 3664(j)(2). Shortly
after this order, the court in Orlansky’s criminal proceeding actually did reduce his
restitution obligations under § 3664(j)(2). Orlansky argues on appeal that the
district court erred in denying a writ of audita querela because the exact amount of
the restitution reduction remains undetermined in his criminal proceeding.
We review de novo whether a petitioner is entitled to a writ of audita
querela. United States v. Holt, 417 F.3d 1172, 1174 (11th Cir. 2005) (per curiam).
The writ of audita querela is “an ancient writ used to attack the enforcement of a
judgment after it was rendered.” Id. The writ was typically employed by a debtor
in a civil case to stop a judgment’s execution “because of some defense or
discharge arising subsequent to the rendition of the judgment.” Id. A writ of
audita querela is now available only to attack a criminal judgment. See Fed. R.
Civ. P. 60(e).
Federal courts have the authority to “issue all writs necessary or appropriate
in aid of their respective jurisdictions and agreeable to the usages and principles of
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law.” 28 U.S.C. § 1651(a). However, this “residual source of authority to issue
writs that are not otherwise covered by statute” does not apply if a statute
specifically addresses the issue. Pa. Bureau of Corr. v. U.S. Marshals Serv., 474
U.S. 34, 43, 106 S. Ct. 355, 361 (1985). Where a statute has a mechanism for
relief, we may not grant a writ of audita querela. See Holt, 417 F.3d at 1175.
Under 18 U.S.C. § 3664(f), a restitution order must set the restitution
amount as the full amount of a victim’s loss without any reduction for third-party
compensation to the victim. 18 U.S.C. § 3664(f)(1). However, the court may
reduce a restitution order “by any amount later recovered as compensatory
damages for the same loss by the victim.” Id. § 3664(j)(2).
The district court did not err in denying Orlanksy’s petition for a writ of
audita querela. Orlansky’s main argument is that we should reduce his restitution
order to prevent the victim in his case from receiving a double recovery as a result
of compensatory damages the victim received from another party for the same loss.
However, § 3664(j)(2) provides a statutory remedy for just this situation. In fact
Orlansky has already sought and received a reduction in his restitution obligation
based on this statutory remedy. This statutory remedy forecloses relief by way of a
writ of audita querela. See Holt, 417 F.3d at 1175.
To the extent Orlansky’s brief can be construed as challenging the court’s
restitution reduction under § 3664(j)(2) in his criminal proceeding, we lack
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jurisdiction to consider that challenge. We have jurisdiction to review “only those
judgments, orders or portions thereof which are specified in an appellant’s notice
of appeal.” Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir.
1987). Orlansky appealed only the district court’s dismissal of his petition for a
writ of audita querela, not any judgment in his criminal proceeding. The district
court thus did not err by denying Orlanksy’s petition for a writ of audita querela.
Upon careful review of the record and consideration of the parties’ briefs,
we affirm.
AFFIRMED.
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