United States v. Ronald Wiggins ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 26, 2020*
Decided March 26, 2020
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-2529
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 2:03-cr-20032-JES
RONALD WIGGINS, James E. Shadid,
Defendant-Appellant. Judge.
ORDER
Ronald Wiggins, a federal prisoner, appeals the denial of his motion to vacate an
order of restitution that was imposed as part of a criminal judgment in 2004. Because
the district court lacked jurisdiction to entertain Wiggins’s motion, we modify the
judgment and affirm as modified.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-2529 Page 2
Wiggins was convicted of bank robbery by intimidation, 18 U.S.C. § 2113(a).
At sentencing in 2004, the district court found that Wiggins was a career offender under
the then-mandatory guidelines, U.S.S.G. § 4B1.1, and sentenced him to the statutory
maximum of 20 years in prison. The court also ordered that he pay restitution
(amounting to $19,430), as required by 18 U.S.C. § 3663A and U.S.S.G. § 5E1.1.
Over the next decade and a half, Wiggins repeatedly sought to overturn the
judgment. He filed a direct appeal that we dismissed as frivolous, 138 F. App’x 842 (7th
Cir. 2005); in that appeal, Wiggins did not object to the restitution order, either through
counsel or in his response to counsel’s motion to withdraw. Wiggins then
unsuccessfully moved to vacate his conviction and sentence under 28 U.S.C. § 2255, and
we denied leave to appeal. No. 08-1100 (7th Cir. Apr. 8, 2008). He next filed two
unauthorized successive § 2255 motions, which the district court properly dismissed for
lack of jurisdiction under 28 U.S.C. §§ 2244(b), 2255(h). See No. 13-1366 (7th Cir. Oct. 8,
2013) (denying certificate of appealability); No. 14-2203 (Nov. 14, 2014) (same). Then,
Wiggins twice applied for our leave to file a successive § 2255 motion to challenge his
career-offender designation, and we denied both applications. No. 16-2142 (7th Cir.
June 14, 2016); No. 16-3417 (Sept. 20, 2016). Finally, in June 2019, Wiggins filed another
unauthorized § 2255 motion in the district court, this time challenging only the
restitution order. The district court dismissed the motion, explaining that challenges to
restitution orders are not cognizable in a § 2255 action, see United States v. Bania, 787
F.3d 1168, 1172 (7th Cir. 2015), and that, even if they were, Wiggins did not have leave
to file a successive collateral attack. He did not appeal.
Instead, a few weeks later, Wiggins filed a “motion to vacate restitution order
nunc pro tunc” in his criminal case. He argued that the order is unconstitutional
because it was imposed under U.S.S.G. § 5E1.1 during the mandatory-guidelines era,
and because § 5E1.1 cross-references 18 U.S.C. § 3663A, which mandates restitution for
victims of a “crime of violence.” In Wiggins’s view, the district court was wrong to rely
on this statute after Cross v. United States, 892 F.3d 288 (7th Cir. 2018), in which we
invalidated the once-mandatory career-offender guideline’s residual definition of a
“crime of violence,” U.S.S.G. § 4B1.2(a)(2) (pre-2016), on vagueness grounds. See 892
F.3d at 304–06. The district court summarily denied the motion.
Wiggins challenges that decision on appeal. Yet, as the government correctly
points out, the district court lacked jurisdiction to entertain Wiggins’s motion to vacate
the restitution order. Once a district court imposes a criminal sentence, its authority to
revisit that sentence is limited, and must be founded on a specific statute or rule. See
No. 19-2529 Page 3
United States v. Johnson, 571 F.3d 716, 717 (7th Cir. 2009); see also United States v. Hook, 471
F.3d 766, 771 n.1 (7th Cir. 2006) (noting restitution is part of original sentence). Though
Wiggins cited 18 U.S.C. § 3663A in his motion, “nothing in [that statute] permits the
[district] court to revisit the restitution order” after it was entered. Bania, 787 F.3d at
1172. And it is too late for him to take advantage of Federal Rule of Criminal Procedure
35, which permits a district court to correct a clear error in a defendant’s sentence only
within 14 days after sentencing. See id. That time limit is jurisdictional, see id., and had
long expired by the time Wiggins moved to vacate the restitution order (nearly 15 years
after the sentence became final). We see no other statute or rule that grants the district
court authority to entertain such a motion, and Wiggins points to none. Thus, we
modify the judgment to reflect that the motion is dismissed for lack of jurisdiction.
As modified, the judgment is AFFIRMED.