Anthony Diggs v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10599 MARCH 13, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket Nos. 9:09-cv-80582-JIC,
9:05-cr-80133-JIC-1
ANTHONY DIGGS,
llllllllllllllllllllllllllllllllllllllll Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 13, 2012)
Before CARNES, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Anthony Diggs appeals the district court’s denial of his 28 U.S.C. § 2255motion to vacate, set aside, or correct his 188-month prison sentence, contending
that the district court erroneously sentenced him as a career offender under the
sentencing guidelines.
I.
Diggs pleaded guilty to, and was convicted of, possession with intent to
distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). The presentence
investigation report recounted Diggs’ criminal history, which included one
conviction for carrying a concealed firearm, one conviction for carrying a
concealed weapon, and two convictions for resisting arrest with violence. Based
on the convictions for carrying a concealed firearm and carrying a concealed
weapon and one of the convictions for resisting arrest with violence, the PSR
recommended classifying Diggs as a career offender under United States
Sentencing Guidelines § 4B1.1 (Nov. 2005).
Because the statutory maximum prison sentence for his conviction was 40
years, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B), his status as a career offender
increased his offense level to 34, see U.S.S.G. § 4B1.1(b). Subtracting 3 levels for
acceptance of responsibility, his total offense level was 31. Diggs’ classification
as a career offender automatically set his criminal history category at VI, see id.,
but that classification made no difference to Diggs’ criminal history category
because he also had 17 criminal history points. His total offense level of 31 and
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his criminal history category of VI yielded a guidelines range of 188 to 235
months imprisonment. The court adopted the PSR’s findings and sentenced Diggs
to a 188-month prison term.
Diggs did not file a direct appeal. Instead, he filed a 28 U.S.C. § 2255motion seeking resentencing based on the Supreme Court’s decision in Begay v.
United States, 553 U.S. 137, 128 S.Ct. 1581 (2008), and our decision in United
States v. Archer, 531 F.3d 1347 (11th Cir. 2008), arguing that his convictions for
carrying a concealed firearm and carrying a concealed weapon were not
convictions for a crime of violence for the purpose of the career offender
enhancement. The district court denied Diggs’ motion, finding that, even if
carrying a concealed firearm and carrying a concealed weapon were not crimes of
violence, Diggs still qualified as a career offender because he had two convictions
for resisting arrest with violence, which were convictions for a crime of violence.
Diggs moved for a certificate of appealability, which the district court
granted on the following question: “Does a Florida prior conviction for Resisting
Arrest with Violence under Fla. Stat. § 843.01 qualify as a ‘crime of violence’
under U.S.S.G. Section 4B1.2(a), justifying a Career Offender sentencing
enhancement?”
II.
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We review a district court’s denial of a § 2255 motion as a mixed question
of law and fact. We review for clear error the court’s findings of fact and review
de novo its application of the law to those facts. Rhode v. United States, 583 F.3d
1289, 1290 (11th Cir. 2009). Our review is “limited to the issue[] specified in the
COA,” id., but we read the COA to include whether Diggs procedurally defaulted
his claim, which is an issue we must address before considering the claim’s merits,
see Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1258 (11th Cir. 2002);
McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001).
“Under the procedural default rule, a defendant generally must advance an
available challenge to a criminal conviction or sentence on direct appeal or else
the defendant is barred from presenting that claim in a § 2255 [motion].” McKay
v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (quotation marks omitted).
There are two exceptions to the procedural default rule: “(1) for cause and
prejudice, or (2) for a miscarriage of justice, or actual innocence.” Id. “Under the
actual innocence exception . . . a movant’s procedural default is excused if he can
show that he is actually innocent either of the crime of conviction or, in the capital
sentencing context, of the sentence itself.” Id. In McKay, we held that the actual
innocence exception to the procedural default rule does not apply where a movant
argues that the predicate offenses that warranted classifying him as a career
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offender were not crimes of violence under the guidelines yet does not argue that
he did not commit those predicate offenses. Id. at 1199.
Our holding in McKay controls the outcome of this case. Diggs
“procedurally defaulted his claim that he was erroneously sentenced as a career
offender because he did not raise that claim on direct appeal—indeed, a direct
appeal was not even filed.” Id. at 1196. He has not argued that his procedural
default should be excused for cause. Nor has he argued that he did not commit the
underlying predicate offenses. His claim is procedurally barred.
AFFIRMED.
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