Cottey

MEMORANDUM *

Appellant Karen Cottey was convicted and sentenced in 2003, after pleading guilty to one count of identity theft pursuant to 18 U.S.C. § 1028 (a)(7). Her sentence ordered restitution in the amount of $33,512.00, which was in accord with the parties’ stipulation regarding the amount of taxes she owed on her fraudulent gaming winnings. She paid the restitution in 2005.

Cottey initiated this proceeding in 2007 in an effort to obtain a return of her payment, contending that the 2003 judgment was incorrect because her total gaming losses for the years in question exceeded her winnings. She sought to establish this by filing a motion pursuant to Rule 36 F.R.Cr.P., and later an application for a writ of audita querela. The district court denied both the motion and the application for writ and advised the appellant to seek her remedy by filing a civil action pursuant to 28 U.S.C. § 1346 (a)(1). The district court was correct.

Rule 36 is intended to correct clerical errors in a judgment of conviction. The record in this case reflects that the amount of restitution ordered was not a clerical error.

A writ of “audita querela” is available only when there is a legal defense…