                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                            No. 11-10599                MARCH 13, 2012
                                        Non-Argument Calendar             JOHN LEY
                                      ________________________             CLERK

                                D.C. Docket Nos. 9:09-cv-80582-JIC,
                                       9:05-cr-80133-JIC-1

ANTHONY DIGGS,

llllllllllllllllllllllllllllllllllllllll                         Petitioner - Appellant,

                                              versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                       Respondent - Appellee.
                                      ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________
                                        (March 13, 2012)

Before CARNES, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         Anthony Diggs appeals the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his 188-month prison sentence, contending
that the district court erroneously sentenced him as a career offender under the

sentencing guidelines.

                                          I.

      Diggs pleaded guilty to, and was convicted of, possession with intent to

distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). The presentence

investigation report recounted Diggs’ criminal history, which included one

conviction for carrying a concealed firearm, one conviction for carrying a

concealed weapon, and two convictions for resisting arrest with violence. Based

on the convictions for carrying a concealed firearm and carrying a concealed

weapon and one of the convictions for resisting arrest with violence, the PSR

recommended classifying Diggs as a career offender under United States

Sentencing Guidelines § 4B1.1 (Nov. 2005).

      Because the statutory maximum prison sentence for his conviction was 40

years, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B), his status as a career offender

increased his offense level to 34, see U.S.S.G. § 4B1.1(b). Subtracting 3 levels for

acceptance of responsibility, his total offense level was 31. Diggs’ classification

as a career offender automatically set his criminal history category at VI, see id.,

but that classification made no difference to Diggs’ criminal history category

because he also had 17 criminal history points. His total offense level of 31 and

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his criminal history category of VI yielded a guidelines range of 188 to 235

months imprisonment. The court adopted the PSR’s findings and sentenced Diggs

to a 188-month prison term.

      Diggs did not file a direct appeal. Instead, he filed a 28 U.S.C. § 2255

motion seeking resentencing based on the Supreme Court’s decision in Begay v.

United States, 553 U.S. 137, 128 S.Ct. 1581 (2008), and our decision in United

States v. Archer, 531 F.3d 1347 (11th Cir. 2008), arguing that his convictions for

carrying a concealed firearm and carrying a concealed weapon were not

convictions for a crime of violence for the purpose of the career offender

enhancement. The district court denied Diggs’ motion, finding that, even if

carrying a concealed firearm and carrying a concealed weapon were not crimes of

violence, Diggs still qualified as a career offender because he had two convictions

for resisting arrest with violence, which were convictions for a crime of violence.

      Diggs moved for a certificate of appealability, which the district court

granted on the following question: “Does a Florida prior conviction for Resisting

Arrest with Violence under Fla. Stat. § 843.01 qualify as a ‘crime of violence’

under U.S.S.G. Section 4B1.2(a), justifying a Career Offender sentencing

enhancement?”

                                         II.

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      We review a district court’s denial of a § 2255 motion as a mixed question

of law and fact. We review for clear error the court’s findings of fact and review

de novo its application of the law to those facts. Rhode v. United States, 583 F.3d

1289, 1290 (11th Cir. 2009). Our review is “limited to the issue[] specified in the

COA,” id., but we read the COA to include whether Diggs procedurally defaulted

his claim, which is an issue we must address before considering the claim’s merits,

see Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1258 (11th Cir. 2002);

McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001).

      “Under the procedural default rule, a defendant generally must advance an

available challenge to a criminal conviction or sentence on direct appeal or else

the defendant is barred from presenting that claim in a § 2255 [motion].” McKay

v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (quotation marks omitted).

There are two exceptions to the procedural default rule: “(1) for cause and

prejudice, or (2) for a miscarriage of justice, or actual innocence.” Id. “Under the

actual innocence exception . . . a movant’s procedural default is excused if he can

show that he is actually innocent either of the crime of conviction or, in the capital

sentencing context, of the sentence itself.” Id. In McKay, we held that the actual

innocence exception to the procedural default rule does not apply where a movant

argues that the predicate offenses that warranted classifying him as a career

                                          4
offender were not crimes of violence under the guidelines yet does not argue that

he did not commit those predicate offenses. Id. at 1199.

      Our holding in McKay controls the outcome of this case. Diggs

“procedurally defaulted his claim that he was erroneously sentenced as a career

offender because he did not raise that claim on direct appeal—indeed, a direct

appeal was not even filed.” Id. at 1196. He has not argued that his procedural

default should be excused for cause. Nor has he argued that he did not commit the

underlying predicate offenses. His claim is procedurally barred.

      AFFIRMED.




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