                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                       No. 10-12948                   APRIL 10, 2012
                                   Non-Argument Calendar               JOHN LEY
                                 ________________________               CLERK


                           D.C. Docket Nos. 9:09-cv-80172-DTKH,
                                  9:06-cr-80184-DTKH-1

DWAINE EASON,

lllllllllllllllllllll                                              Petitioner-Appellant,
                                            versus

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                             Respondent-Appellee.
                                ________________________

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

                                       (April 10, 2012)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         On June 18, 2007, Dwaine Eason was sentenced to prison for 72 months on

a plea of guilty to possession of a semi-automatic pistol and ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The court imposed an

enhanced sentence because Eason was a career offender; he has a prior conviction

for carrying a concealed weapon, which the court considered as a crime of

violence under the Sentencing Guidelines.

      Eason did not appeal his sentence, but in July 2008, he moved the district

court to reduce his sentence based upon his actual innocence, citing this court’s

holding in United States v. Archer, 531 F3d 1347 (11th Cir. 2008), that carrying a

concealed weapon does not constitute a crime of violence for sentencing purposes.

Because his prior conviction for carrying a concealed weapon is not a crime of

violence, Eason argued, he was “actually innocent” of that crime. The district

court denied his motion, and, on April 21, 2009, we affirmed the ruling. United

States v. Eason, 323 Fed. App’x 827 (11th Cir. 2009).

      On February 11, 2009, while that appeal was pending, Eason moved the

district court pursuant to 28 U.S.C. § 2255 to vacate his sentence on two grounds:

(1) his attorney rendered ineffective assistance of counsel for failing to appeal his

sentence, and (2) he is actually innocent of his sentence in light of our decision in

Archer and the Supreme Court’s decision in Begay v. United States, 553 U.S. 137,

128 S. Ct. 1581, 170 L. Ed.2d. (2008). The district court rejected both grounds

and denied his motion. He appealed, and we granted a certificate of appealability

                                          2
on one issue: “Whether the district court erred in determining that a freestanding

challenge to a career offender sentence imposed under U.S.S.G. § 4B1.1, brought

pursuant to United States v. Archer, 531 F.3d d1347 (11th Cir. 2008), fails to state

a cognizable claim on collateral review.”

      We withheld consideration of this appeal pending our decision in McKay v.

United States, 657 F.3d 1190 (11th Cir. 2011). McKay controls the disposition of

this appeal. In McKay, as here, the § 2255 movant, McKay, failed to appeal his

sentence and claimed in his § 2255 motion, as Eason does in this case, that he was

actually innocent of his sentence on the ground that the district court, at

sentencing, erred in treating his prior conviction for carrying a concealed weapon

as a crime of violence. Although the district court denied McKay relief and a

COA, this Court granted him a COA on the following issue: “[w]hether the district

court erred in finding that [McKay's] sentencing claim about the career-offender

enhancement is not cognizable in proceedings under 28 U.S.C. § 2255, and, if

cognizable, whether this sentencing claim is procedurally defaulted in any event.”

Id. at 1195. We ultimately declined to address the cognizability issue in McKay,

but affirmed the district court’s denial of relief based upon McKay’s procedural

default, i.e., his failure to raise his Archer claim on direct appeal. Id. at 1195–96,

1998–2000. In doing so, we kept the actual innocence exception to procedural

                                            3
default narrow. Id. at 1999. Specifically, we “decline[d] to extend the actual

innocence of sentence exception to claims of legal innocence” involving guideline

sentencing enhancements. Id. The facts of Eason’s case are indistinguishable

from McKay. Therefore, we conclude that Eason’s claim of actual innocence

regarding his guideline sentence cannot excuse his procedural default.



      AFFIRMED.




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