United States v. Tavares Ontario Wiggins

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED

U.S. COURT OF APPEALS No. 09-15451 ELEVENTH CIRCUIT

APRIL 27, 2010

Non-Argument Calendar

JOHN LEY

________________________

CLERK D. C. Docket No. 00-00650-CR-PCH

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

TAVARES ONTARIO WIGGINS, a.k.a. Tavaris Wiggins, a.k.a. Tavares Williams,

Defendant-Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida

_________________________

(April 27, 2010)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Taveres Ontario Wiggins, a federal prisoner convicted of a crack-cocaine offense, appeals the district court’s denial of his pro se motion for a reduced sentence, brought pursuant to 18 U.S.C. § 3582(c)(2). Wiggins relies on this Court’s decision in United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) and the Supreme Court’s decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581 (2008), to support his claim that carrying a concealed weapon does not constitute a crime of violence for sentencing purposes. As such, he argues that he did not qualify for the career offender enhancement in U.S.S.G. § 4B1.1, and thus his sentence should be reduced under § 3582(c)(2).

We review de novo a district court’s conclusions regarding the scope of its legal authority under 18 U.S.C. § 3582(c)(2). United States v. James, 548 F.3d 983, 984 (11th Cir. 2008). Although a district court generally cannot modify a term of imprisonment once it has been imposed, an exception lies in § 3582(c)(2).1 The policy statements provide that § 3582 encompasses challenges to the application of only those Guidelines that have been retroactively amended; the district court must leave all other Guideline decisions unaffected. U.S.S.G. § 1B1.10(b)(1); United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (“[A]ll original sentencing determinations remain unchanged with the sole exception of the guideline range that has been amended since the original sentencing.”).

Here, Wiggins has not alleged a cognizable claim under § 3582(c)(2) because his request for a reduced sentence relies on case decisions, not a retroactive Guideline amendment. See United States v. Moreno, 421 F.3d 1217, 1220–21 (11th Cir. 2005) (holding that because Booker2 is a Supreme Court decision rather than a retroactive Guideline amendment, it does not provide an independent basis for a motion that is otherwise not cognizable under § 3582(c)(2)); see also Bravo, 203 F.3d at 782 (holding that “[e]xtraneous resentencing issues” are not cognizable in § 3582 motions, and must be brought as § 2255 collateral attacks to the sentence). Therefore, Wiggins is not entitled to § 3582 relief.

AFFIRMED.