[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14644 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 5, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:07-cr-20549-MGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ANTIOWAN WIWO,
Defendant-Appellee.
________________________
No. 11-14645
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:09-cv-20785-MGC ; 1:07-cr-20549-MGC-1
ANTIOWAN WIWO,
llllllllllllllllllllllllllllllllllllllllPetitioner-Appellee,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllRespondent-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(June 5, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:
The district court granted Antiowan Wiwo’s motion to vacate under 28
U.S.C. §§ 2241 & 2255, resentenced Wiwo to a shorter term of imprisonment, and
entered an amended judgment. The Government appeals, claiming that Wiwo
procedurally defaulted his claim. We agree. We vacate both orders and remand to
the district court with instructions to reinstate Wiwo’s original sentence.
I.
In 2007, Wiwo pleaded guilty to being a felon in possession of a firearm.
The district court sentenced him to serve 84 months’ imprisonment, followed by 2
years of supervised release. Wiwo did not appeal. In 2009, Wiwo filed a § 2255
motion to vacate his sentence, relying on both Begay v. United States, 553 U.S.
137 (2008), and United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) to argue
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that his sentence was illegal. The district court, citing Wofford v. Scott, 177 F.3d
1236 (11th Cir. 1999), granted relief and resentenced Wiwo to a term of 58
months’ imprisonment and 2 years of supervised release.
The parties agree on appeal that the district court erroneously applied
Wofford, see Gilbert v. United States, 640 F.3d 1293, 1319-23 (11th Cir. 2011),
that Wiwo procedurally defaulted his claim by failing to file a direct appeal, and
that our precedent precludes Wiwo from overcoming this procedural default. See
McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011), pet. for cert. filed
(Apr 23, 2012) (U.S. No. 11-9985). Nevertheless, Wiwo urges us to affirm the
district court’s erroneous order.
II.
Generally, we review a § 2255 proceeding under a mixed standard,
reviewing factual findings for clear error and legal issues de novo. Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004). However, Wiwo claims we are
entirely precluded from reviewing the district court’s error because the
Government invited that error. Alternatively, Wiwo claims a plain error standard
should apply because the Government waived the procedural default claim by
failing to “object” that Wiwo was not actually innocent.
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A party may not challenge as error a ruling invited by that party. United
States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). “The doctrine of invited
error is implicated when a party induces or invites the district court into making an
error.” United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998) (quotation
omitted). Invited error most frequently occurs when a party introduces otherwise
inadmissible evidence at trial or submits incorrect jury instructions with which the
court charges the jury. Id. When a party’s words or actions expressly accept the
position challenged on appeal, that party invited the error. See United States v.
Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005).
The Government never accepted the district court’s erroneous legal
position. In fact, the Government consistently claimed Wiwo procedurally
defaulted his claim. The Government did not propose, accept, or adopt the
erroneous legal conclusion reached by the district court. The invited error doctrine
is inapposite to this case.
Wiwo describes the Government’s argument in favor of procedural default
as a new “objection” that should have been raised before the district court, and
insists plain-error review is appropriate. Although a party may waive an objection
in district court by not clearly articulating it, see United States v. Zinn, 321 F.3d
1084, 1087-88 (11th Cir. 2003), once a claim has been properly raised, any
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argument may be advanced in support of that claim on appeal. Pugliese v. Pukka
Dev., Inc., 550 F.3d 1299, 1304 n.3 (11th Cir. 2008). The Government has
consistently claimed procedural default precludes Wiwo’s requested relief. We
therefore reject Wiwo’s proposed plain-error standard, and review the district
court’s legal conclusions de novo.
Wiwo confesses the district court committed legal error, and concedes his
claim is procedurally defaulted. Our precedent dictates the same result. See
McKay, 657 F.3d at 1996; Gilbert, 640 F.3d at 1319-23. We vacate the district
court’s order and its amended judgment, and remand to the district court with
instructions to reinstate the original sentence.
VACATED AND REMANDED.
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