                                                       [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-13621         ELEVENTH CIRCUIT
                                                      FEB 10, 2012
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

       D. C. Docket No. 9:09-cv-80610-DMM; 9:00-cr-08027-DMM-1


CHRISTIAN KERR,
                                                        Petitioner-Appellant,

     versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.

              _________________________________________

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

                            (February 10, 2012)

Before TJOFLAT, EDMONDSON, and CARNES, Circuit Judges.


PER CURIAM:
      Christian Kerr, a federal prisoner, appeals the district court’s denial of his

pro se 28 U.S.C. § 2255 motion to vacate his 160-month sentence. No reversible

error has been shown; we affirm.

      In 2001, Kerr pleaded guilty to bank robbery and was sentenced as a career

offender based on his prior felony convictions for battery on a law enforcement

officer and carrying a concealed firearm. He did not appeal his sentence. In his

section 2255 motion, Kerr argued that he was “actually innocent” of his

career-offender sentencing enhancement because -- based on the Supreme Court’s

decision in Begay v. United States, 128 S.Ct. 1581 (2008), and this Court’s

decision in United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) -- carrying a

concealed firearm no longer qualified as a “crime of violence” under U.S.S.G.

§ 4B1.1(a). The district court denied Kerr’s motion but granted a certificate of

appealability on “[w]hether a freestanding challenge to a career offender sentence

imposed under U.S.S.G. § 4B1.1, brought pursuant to [Archer], states a cognizable

claim on collateral review.”

      On appeal, Kerr reasserts that his enhanced sentence violates the sentencing

guidelines in the light of Begay and Archer. Relying on the Supreme Court’s

recent decision in Johnson v. United States, 130 S.Ct. 1265 (2010), he also

contends that his second predicate offense, battery on a law enforcement officer, is

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no longer considered a “crime of violence.” Because Kerr raises this argument for

the first time on appeal, we will not consider it. See Walker v. Jones, 10 F.3d

1569, 1572 (11th Cir. 1994).* Moreover, this argument is not cognizable for the

reason we will discuss.

       We review legal issues in section 2255 proceedings de novo. Lynn v.

United States, 365 F.3d 1225, 1232 (11th Cir. 2004). Because Kerr raises a non-

constitutional issue that he failed to raise on direct appeal, section 2255 relief is

available only if the error “(1) could not have been raised on direct appeal and

(2) would, if condoned, result in a complete miscarriage of justice.” See id. at

1232-33. “A ground of error is usually ‘available’ on direct appeal when its merits

can be reviewed without further factual development.” Id. at 1233 n.14.

       Kerr argues that he could not have challenged his career-offender status on

direct appeal because there was no legal authority supporting his argument. But

perceived futility in raising an issue on direct appeal does not constitute cause for

not doing so. See Smith v. Murray, 106 S.Ct. 2661, 2666 (1986). Indeed, even

though the decisions in Begay, Archer, and Johnson were unavailable when Kerr

was sentenced in 2001, he could have argued on appeal that his career-offender



  *
    We will also not consider Kerr’s alternate argument -- raised for the first time on appeal -- that
he is entitled to relief pursuant to 28 U.S.C. § 2241. See Walker, 10 F.3d at 1572.

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status was improper -- just as Begay, Archer, and Johnson did. Because Kerr

could have raised this claim on direct appeal but failed to do so, his claim is not

cognizable now on collateral review under section 2255.

      AFFIRMED.




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