                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 January 18, 2007
                               No. 06-10693                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                   D. C. Docket No. 89-00190-CR-J-20-TEM

KENNETH LEON WOOD,



                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                              (January 18, 2007)

Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.

PER CURIAM:

     Kenneth Leon Wood, a federal pro se prisoner, appeals the district court’s
denial of his motion to modify his life sentence, pursuant to 18 U.S.C. § 3582,

which the court recharacterized as a motion to vacate, filed pursuant to 28 U.S.C.

§ 2255. We granted a certificate of appealability (“COA”) on two issues:

      (1)     Whether the district court erred by construing Wood’s 18 U.S.C. §
              3582 claims regarding Amendment 591 and 599 to the sentencing
              guidelines as 28 U.S.C. § 2255 claims; and

      (2)     If not, whether the district court erred by recharacterizing the
              appellant’s 18 U.S.C. § 3582 motion as a motion to vacate pursuant to
              28 U.S.C. § 2255, without first giving the appellant an opportunity to
              withdraw the motion or to amend it to include all of his § 2255 claims.
              See Castro v. United States, 540 U.S. 375, 383, 124 S.Ct. 786, 792,
              157 L.Ed.2d 778 (2003).

      On appeal, Wood states that he was sentenced under the federal Sentencing

Guidelines. He then argues that he filed a pro se pleading which was clearly

labeled as a “Motion to Modify Sentence under § 3582.” Moreover, he asserts, in

that motion, he noted that his sentence should have been amended based upon

Amendments 591 and 599 and that we have held that a motion to modify is the

propr mechanism to seek relief on a retroactive amendment to the Sentencing

Guidelines.

      In a proceeding to modify a sentence under § 3582(c)(2), we review de novo

the district court’s legal conclusions regarding the scope of its authority under the

Sentencing Guidelines. United States v. White, 305 F.3d 1264, 1267 (11th Cir.

2002). The district court’s denial of a motion to reduce a sentence pursuant to 18

                                           2
U.S.C. § 3582(c)(2) is reviewed for abuse of discretion. Id.

      Section 1B1.10(a) of the Sentencing Guidelines allows a defendant to move,

pursuant to 18 U.S.C. § 3582(c)(2), for a reduction of his sentence based on a

guideline range applicable to the defendant which has been subsequently lowered

because of an amendment to the Guidelines. See U.S.S.G. § 1B1.10(a).

Section 3582(c) provides for modification of a defendant’s sentence under three

circumstances. First, on a motion of the Director of the Bureau of Prisons, under

specific circumstances regardless of whether the defendant was sentenced under

the Sentencing Guidelines. 18 U.S.C. § 3582(c)(1)(A). Second, pursuant to

Federal Rule of Criminal Procedure 35, which allows a court to correct a

prisoner’s sentence when (1) it resulted from arithmetical, technical, or clear error

and within seven days of the sentencing, or (2) the government has filed a

substantial assistance motion. 18 U.S.C. § 3582(c)(1)(B). Third, upon motion of

the defendant or the Director of the Bureau of Prisons, if the defendant was

sentenced under the Guidelines and the sentencing range subsequently has been

lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Thus, only the

third option is open to Wood. However, a review of the record of Woods’s

conviction reveals that he was not sentenced pursuant to the Sentencing

Guidelines. Because Wood was not sentenced under the Guidelines, he could not



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obtain relief under § 3582(c)(2). A district court is obligated to determine whether

a pro se litigant’s claims are cognizable under a different statutory framework.

United States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003). The district

court thus did not err when it recharacterized Wood’s motion as one filed pursuant

to § 2255.

      Wood next argues that a district court may not re-characterize a defendant’s

pleadings without first informing the defendant that any subsequent § 2255

motions would be subject to the restrictions of a second or successive § 2255

motion and providing that defendant with an opportunity to withdraw or amend the

motion. Wood asserts that the district court failed to comply with these

requirements. Finally, Wood states that he “deliberately invoked” § 3582, did not

want to file a § 2255 motion, and “should not be compelled to utilize § 2255.”

      The Supreme Court has held that, when a court recharacterizes a pro se

litigant’s motion as a first § 2255 motion, the defendant must be (1) given notice

of the recharacterization, (2) informed that any subsequent § 2255 motion will be

subject to the restrictions of a “second or successive” motion, and (3) provided an

opportunity to withdraw the motion or to amend it so that it contains all the § 2255

claims. Castro v. United States, 540 U.S. 375, 383, 124 S.Ct. 786, 792, 157

L.Ed.2d 778 (2003). The Court held that, if a district court fails to comply with



                                          4
those requirements, “the motion cannot be considered to have become a § 2255

motion for purposes of applying to later motions the law’s ‘second or successive’

restrictions.” Id.

      The district court did err in recharacterizing Wood’s motion without first

giving him notice and an opportunity to withdraw or amend the motion. However,

the remedy for that failing is not remand. Instead, as stated in Castro, the instant

motion cannot be considered to have become a § 2255 motion for purposes of

determining whether any future § 2255 motion is second or successive.

      Upon careful review of the record on appeal and consideration of the parties’

briefs, we discern no reversible error. For the foregoing reasons, we affirm.

      AFFIRMED.




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