FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 5, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-14644

Non-Argument Calendar

 ________________________

 D.C. Docket No. 1:07-cr-20549-MGC-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

versus

ANTIOWAN WIWO, 

Defendant-Appellee.

 ________________________

 No. 11-14645 

Non-Argument Calendar

 ________________________

 D.C. Docket Nos. 1:09-cv-20785-MGC ; 1:07-cr-20549-MGC-1

ANTIOWAN WIWO, 

llllllllllllllllllllllllllllllllllllllllPetitioner-Appellee,

versus
UNITED STATES OF AMERICA, 

llllllllllllllllllllllllllllllllllllllllRespondent-Appellant.

________________________

 Appeals from the United States District Court

 for the Southern District of Florida

 ________________________

(June 5, 2012)

Before CARNES, WILSON and BLACK, Circuit Judges.

PER CURIAM:

The district court granted Antiowan Wiwo’s motion to vacate under 28

U.S.C. §§ 2241 & 2255, resentenced Wiwo to a shorter term of imprisonment, and

entered an amended judgment. The Government appeals, claiming that Wiwo

procedurally defaulted his claim. We agree. We vacate both orders and remand to

the district court with instructions to reinstate Wiwo’s original sentence.

I.

In 2007, Wiwo pleaded guilty to being a felon in possession of a firearm. 

The district court sentenced him to serve 84 months’ imprisonment, followed by 2

years of supervised release. Wiwo did not appeal. In 2009, Wiwo filed a § 2255

motion to vacate his sentence, relying on both Begay v. United States, 553 U.S.

137 (2008), and United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) to argue

2
that his sentence was illegal. The district court, citing Wofford v. Scott, 177 F.3d

1236 (11th Cir. 1999), granted relief and resentenced Wiwo to a term of 58

months’ imprisonment and 2 years of supervised release. 

The parties agree on appeal that the district court erroneously applied

Wofford, see Gilbert v. United States, 640 F.3d 1293, 1319-23 (11th Cir. 2011),

that Wiwo procedurally defaulted his claim by failing to file a direct appeal, and

that our precedent precludes Wiwo from overcoming this procedural default. See

McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011), pet. for cert. filed

(Apr 23, 2012) (U.S. No. 11-9985). Nevertheless, Wiwo urges us to affirm the

district court’s erroneous order.

II.

Generally, we review a § 2255 proceeding under a mixed standard,

reviewing factual findings for clear error and legal issues de novo. Lynn v. United

States, 365 F.3d 1225, 1232 (11th Cir. 2004). However, Wiwo claims we are

entirely precluded from reviewing the district court’s error because the

Government invited that error. Alternatively, Wiwo claims a plain error standard

should apply because the Government waived the procedural default claim by

failing to “object” that Wiwo was not actually innocent.

3
A party may not challenge as error a ruling invited by that party. United

States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). “The doctrine of invited

error is implicated when a party induces or invites the district court into making an

error.” United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998) (quotation

omitted). Invited error most frequently occurs when a party introduces otherwise

inadmissible evidence at trial or submits incorrect jury instructions with which the

court charges the jury. Id. When a party’s words or actions expressly accept the

position challenged on appeal, that party invited the error. See United States v.

Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005). 

The Government never accepted the district court’s erroneous legal

position. In fact, the Government consistently claimed Wiwo procedurally

defaulted his claim. The Government did not propose, accept, or adopt the

erroneous legal conclusion reached by the district court. The invited error doctrine

is inapposite to this case.

Wiwo describes the Government’s argument in favor of procedural default

as a new “objection” that should have been raised before the district court, and

insists plain-error review is appropriate. Although a party may waive an objection

in district court by not clearly articulating it, see United States v. Zinn, 321 F.3d

1084, 1087-88 (11th Cir. 2003), once a claim has been properly raised, any

4
argument may be advanced in support of that claim on appeal. Pugliese v. Pukka

Dev., Inc., 550 F.3d 1299, 1304 n.3 (11th Cir. 2008). The Government has

consistently claimed procedural default precludes Wiwo’s requested relief. We

therefore reject Wiwo’s proposed plain-error standard, and review the district

court’s legal conclusions de novo.

Wiwo confesses the district court committed legal error, and concedes his

claim is procedurally defaulted. Our precedent dictates the same result. See

McKay, 657 F.3d at 1996; Gilbert, 640 F.3d at 1319-23. We vacate the district

court’s order and its amended judgment, and remand to the district court with

instructions to reinstate the original sentence.

VACATED AND REMANDED.

5