[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12948 APRIL 10, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket Nos. 9:09-cv-80172-DTKH,
9:06-cr-80184-DTKH-1
DWAINE EASON,
lllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
lllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 10, 2012)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
On June 18, 2007, Dwaine Eason was sentenced to prison for 72 months on
a plea of guilty to possession of a semi-automatic pistol and ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The court imposed an
enhanced sentence because Eason was a career offender; he has a prior conviction
for carrying a concealed weapon, which the court considered as a crime of
violence under the Sentencing Guidelines.
Eason did not appeal his sentence, but in July 2008, he moved the district
court to reduce his sentence based upon his actual innocence, citing this court’s
holding in United States v. Archer, 531 F3d 1347 (11th Cir. 2008), that carrying a
concealed weapon does not constitute a crime of violence for sentencing purposes.
Because his prior conviction for carrying a concealed weapon is not a crime of
violence, Eason argued, he was “actually innocent” of that crime. The district
court denied his motion, and, on April 21, 2009, we affirmed the ruling. United
States v. Eason, 323 Fed. App’x 827 (11th Cir. 2009).
On February 11, 2009, while that appeal was pending, Eason moved the
district court pursuant to 28 U.S.C. § 2255 to vacate his sentence on two grounds:
(1) his attorney rendered ineffective assistance of counsel for failing to appeal his
sentence, and (2) he is actually innocent of his sentence in light of our decision in
Archer and the Supreme Court’s decision in Begay v. United States, 553 U.S. 137,
128 S. Ct. 1581, 170 L. Ed.2d. (2008). The district court rejected both grounds
and denied his motion. He appealed, and we granted a certificate of appealability
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on one issue: “Whether the district court erred in determining that a freestanding
challenge to a career offender sentence imposed under U.S.S.G. § 4B1.1, brought
pursuant to United States v. Archer, 531 F.3d d1347 (11th Cir. 2008), fails to state
a cognizable claim on collateral review.”
We withheld consideration of this appeal pending our decision in McKay v.
United States, 657 F.3d 1190 (11th Cir. 2011). McKay controls the disposition of
this appeal. In McKay, as here, the § 2255 movant, McKay, failed to appeal his
sentence and claimed in his § 2255 motion, as Eason does in this case, that he was
actually innocent of his sentence on the ground that the district court, at
sentencing, erred in treating his prior conviction for carrying a concealed weapon
as a crime of violence. Although the district court denied McKay relief and a
COA, this Court granted him a COA on the following issue: “[w]hether the district
court erred in finding that [McKay's] sentencing claim about the career-offender
enhancement is not cognizable in proceedings under 28 U.S.C. § 2255, and, if
cognizable, whether this sentencing claim is procedurally defaulted in any event.”
Id. at 1195. We ultimately declined to address the cognizability issue in McKay,
but affirmed the district court’s denial of relief based upon McKay’s procedural
default, i.e., his failure to raise his Archer claim on direct appeal. Id. at 1195–96,
1998–2000. In doing so, we kept the actual innocence exception to procedural
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default narrow. Id. at 1999. Specifically, we “decline[d] to extend the actual
innocence of sentence exception to claims of legal innocence” involving guideline
sentencing enhancements. Id. The facts of Eason’s case are indistinguishable
from McKay. Therefore, we conclude that Eason’s claim of actual innocence
regarding his guideline sentence cannot excuse his procedural default.
AFFIRMED.
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