USA v. Tavares Ontario Wiggins, No. 09-15451 (11th Cir. 2010)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-15451 APRIL 27,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 1 Section 3582(c)(2) states in relevant part: [I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . the court may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 2 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. 2 United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). 3
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