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                                                                        [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                               ________________________

                                     No. 11-12528
                               ________________________

                          D.C. Docket Nos. 1:10-cv-23033-JIC,

                                    1:96-cr-00075-JIC-27

ROGELIO LAZARO GALVEZ,

                                                                         Petitioner-Appellant,

                                            versus

UNITED STATES OF AMERICA,

                                                                        Respondent-Appellee.

                               ________________________

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

                                        (April 5, 2013)

Before MARCUS, BLACK and SILER, ∗ Circuit Judges.

PER CURIAM:


       ∗
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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       Rogelio Galvez appeals the district court’s denial of his pro se 28 U.S.C.

§ 2255 motion to vacate his 360-month sentence for conspiring to possess with

intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 841(a)(1). In

1999, Galvez was sentenced as a career offender under U.S.S.G. § 4B1.1. This

was based, in part, on facts in Galvez’s pre-sentence investigation report (PSI)

detailing his prior conviction for aggravated battery, which the district court found

qualified as a “crime of violence” under § 4B1.1(a). In his § 2255 motion, Galvez

argues the district court’s reliance on the PSI in 1999 runs afoul of the Supreme

Court’s recent decision in Johnson v. United States, 130 S. Ct. 1265 (2010).

Galvez claims that Johnson bars district courts from relying upon factual

descriptions in a PSI when determining whether a prior conviction qualifies as a

§ 4B1.1(a) “crime of violence.” After reviewing the record and the parties’ briefs,

as well as having had the benefit of oral argument, we affirm. 1

       Procedural default is a threshold issue in a § 2255 case. See McKay v.

United States, 657 F.3d 1190, 1195 (11th Cir. 2011). When a petitioner fails to

raise an available issue on direct appeal, he is procedurally barred from presenting

such a claim in a § 2255 proceeding. Id. at 1196. An issue is “available” on direct

appeal “when its merits can be reviewed without further factual development.”

       1
         When considering a district court’s denial of a § 2255 motion, we review questions of
law de novo and findings of fact for clear error. Varela v. United States, 400 F.3d 864, 867 n.3
(11th Cir. 2005). We can affirm the district court’s judgment for any reason supported by the
record. See McKay v. United States, 657 F.3d 1190, 1195–96 (11th Cir. 2011).
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Lynn v. United States, 365 F.3d 1225, 1232 n.14 (11th Cir. 2004) (internal

quotation marks omitted).

      Galvez’s challenge was available on direct appeal as no additional fact-

finding was necessary for him to appeal his sentence on this ground. Galvez,

however, did not directly appeal his sentence, nor has he explained his failure to

raise this argument on direct appeal. It is no excuse that Johnson was decided

years after Galvez’s 1999 sentence. The “building blocks” for Galvez’s claim

were in existence at the time of sentencing. See McCoy v. United States, 266 F.3d

1245, 1258 (11th Cir. 2001). Johnson is a direct descendant of the Supreme

Court’s 1990 decision in Taylor v. United States, 495 U.S. 575 (1990). See, e.g.,

Johnson, 130 S. Ct. at 1273 (relying on Taylor, among other cases, for the claim

Galvez seeks to make in his § 2255 motion). If Galvez believed his career

offender status was improper, he could have made that claim on direct appeal—just

as the plaintiff in Johnson later did. See McCoy, 266 F.3d at 1258. The question

for purposes of procedural default, after all, is “not whether subsequent legal

developments have made counsel’s task easier, but whether at the time of the

default the claim was ‘available’ at all.” Smith v. Murray, 477 U.S. 527, 537

(1986) (emphasis added). Here, Galvez’s claim was available, it was not raised on




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direct appeal, and he has not argued on appeal that either exception to the

procedural default rule preserves his claim. 2

       Alternatively, even if we reached the merits of Galvez’s claim, he is not

entitled to relief. In United States v. Beckles, 565 F.3d 832, 843 (11th Cir. 2009),

we explained that when ambiguities in the judgment permit a district court to look

at the facts of an underlying conviction to determine whether it qualifies as a

“crime of violence,” the district court “may base its factual findings on undisputed

statements found in the PSI.” We have adhered to this rule in the § 2255 context

even in the wake of Johnson. See Rozier v. United States, 701 F.3d 681, 685–86

(11th Cir. 2012). Galvez concedes that he did not object to the PSI’s factual

description of his aggravated battery offense. The district court, therefore, did not

err by relying on the undisputed facts in Galvez’s PSI during sentencing.

       In conclusion, Galvez’s § 2255 motion is procedurally defaulted, as he did

not raise his claim on direct appeal, but rather waited eleven years to file this

§ 2255 motion in the aftermath of Johnson. Even if we entertained Galvez’s claim

on the merits, he is not entitled to relief under binding Circuit precedent.

       2
          Even if Galvez had, neither exception would apply. See Dretke v. Haley, 541 U.S. 386,
394 (2004) (stressing courts must construe the exceptions to procedural default narrowly). First,
Galvez cannot show “cause and actual prejudice.” See Ward v. Hall, 592 F.3d 1144, 1176 (11th
Cir. 2010). The district court’s purported error did not “work[] to his actual and substantial
disadvantage,” see id. at 1178, because Galvez cannot show he would have received a lesser
sentence without the career offender enhancement. Second, Galvez’s procedural default is not
excused under the “actual innocence” exception, because challenging one’s career offender
status is not a claim of factual innocence; it is instead an argument about legal innocence. See
McKay, 657 F.3d at 1197–1200.
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Accordingly, the district court’s denial of Galvez’s 28 U.S.C. § 2255 motion to

vacate his sentence is AFFIRMED.




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