The opinion of the court was delivered by: Sifton, Senior Judge
MEMORANDUM OPINION AND ORDER
In 1994, defendant Michael Taylor was convicted of making false statements in violation of 18 U.S.C. §1001. Thereafter, in March 2002 he pled guilty to filing a fraudulent tax return in violation of 18 U.S.C. §287. He is awaiting sentencing in that case. Now before this Court is defendant's petition to vacate, set aside, or correct the 1994 sentence pursuant to 28 U.S.C. §2255.
The following facts are taken from the submissions of the parties in connection with this motion and are undisputed.
In 1994 Michael Taylor was convicted on a plea of guilty to making false statements in violation of 18 U.S.C. §1001, as a result of his submission of a false income tax return claiming a refund. On March 2, 1994 he was sentenced to a term of incarceration of 21 months, a three-year supervised release term and a $50 special assessment. He was released from custody on January 1, 1995 and completed and was discharged from supervised release on January 3, 1998.
Thereafter, on March 14, 2002 Taylor pled guilty to a one-count indictment charging him with filing a fraudulent tax return for tax year 1998 which claimed a refund for $6,884, in violation of 18 U.S.C. §287. He is currently awaiting sentencing in that matter.
On March 4, 2005, defendant filed a motion to set aside his 1994 conviction. After the government filed its response but before the matter was heard in this Court, defendant filed a "Notice of Motion to Amend the Pleading Fed. R. Civ. P. 15(a)." On March 7, 2006 the parties appeared before the undersigned. At that time the government had not responded to defendant's motion to amend. Accordingly, I instructed the government to respond. They have now done so.
Defendant's original motion attacks his 1994 conviction on three grounds: (1) that the Court in sentencing him found by the preponderance of the evidence that Taylor was guilty of an offense not charged in the indictment, (2) that the Court upwardly departed on the basis of facts found only by a preponderance of the evidence and not proven to a jury, (3) the imposition of his supervised release meant that the United States received "more than it bargained for."
The defendant styles his motion one to set aside his sentence pursuant to 28 U.S.C. §2255. However, because Taylor has finished serving his sentence and his supervised release term, he is no longer "in custody." Accordingly, he may not bring his petition under Section 2255. 28 U.S.C. §2255; Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994)(petitioner no longer "in custody" where he had finished supervised release term as of the filing of the petition; accordingly, court lacked jurisdiction to consider claim). Moreover, even if defendant were in custody, he still could not resort to Section 2255 because his submission is well beyond the one-year limitations period from the finality of his conviction. 28 U.S.C. §2255. Thus, defendant's complaint should instead be construed as a petition for writ of error coram nobis.
The standards for coram nobis relief have been set forth by the Court of Appeals as follows:
Coram nobis is not a substitute for appeal, and relief under the writ is strictly limited to those cases in which " 'errors . . . of the most fundamental character' " have rendered " 'the proceeding itself irregular and invalid.' " United States v. Carter, 437 F.2d 444, 445 (5th Cir.) (per curiam) (quoting United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19-20, 59 L.Ed. 129 (1914)), cert. denied,403 U.S. 920, 91 S.Ct. 2238, 29 L.Ed.2d 698 (1971). A district court may issue a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a), where "extraordinary circumstances are present." Nicks v. United States, 955 F.2d 161, 167 (2d Cir.1992). The proceedings leading to the petitioner's conviction are presumed to be *79 correct, and "the burden rests on the accused to show otherwise." United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954); Nicks, 955 F.2d at 167. A petitioner seeking such relief must demonstrate that 1) there are " 'circumstances compelling such action to achieve justice,' " id. at 167 (quoting Morgan, 346 U.S. at 511, 74 S.Ct. at 252-53), 2) "sound reasons exist [ ] for failure to seek appropriate earlier relief," Morgan, 346 U.S. at 512, 74 S.Ct. at 253, and 3) the petitioner "continues to suffer legal consequences from his conviction that may be remedied by granting of the writ," Nicks, 955 F.2d at 167. Foont v. U.S., 93 F.3d 76, 78-79 (2d Cir. 1996).
According to the Pre-Sentence Report in his current criminal case, the challenged conviction would raise defendant's criminal history category by three points, from Category III, to Category IV. This circumstance fulfills the third condition, that of a continuing legal consequence. Nicks, 995 F.2d at 167 (holding that where the challenged conviction may be or was considered at a sentencing factor in a later case, the challenged conviction carries continuing legal consequence").
However, defendant cannot meet the first two conditions. First, he cannot show that there are "circumstances compelling such action to achieve justice," basically because his claims are without merit. His first two claims, (1) that the Court in sentencing him determined by the preponderance of the evidence that Taylor was guilty of an offense not charged in the indictment, and (2) that the Court upwardly departed on the basis of facts found only by a preponderance of the evidence and not proven to a jury appear to rely on United States v. Booker, 543 U.S. 220 (2005). However, this Circuit has held that Booker does not apply retroactively to 2255 claims. see Guzman v. United States, 404 F.3d 139 (2d Cir. 2005). Since retroactivity principles applicable in the Section 2255 context are applicable in the coram nobis context, U.S. v. Mancini, 205 F.3d 519, 527 (2d Cir. 2000), Booker may not be applied retroactively to challenge a sentence on a coram nobis petition. Taylor's third claim reads as follows: "at sentencing, movant was given three years of probation to be served after completion of his prison sentence. Since movant did not receive a suspended sentence, coupled by the fact that movant was subject to an additional period of incarceration, the United States [got] more than it bargained for." Def. Br. 5. Defendants are often sentenced to both a period of incarceration and a period of supervision by the probation officer. This, in and of itself, is not a cognizable ...