United States of America, Plaintiff-appellee, v. Christopher Jay Mccorvey, Defendant-appellant, 26 F.3d 134 (9th Cir. 1994)

MEMORANDUM^** 

Christopher Jay McCorvey appeals his sentence imposed under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), for being an ex-felon in possession of a firearm in violation of 18 U.S.C. § 922(g). McCorvey contends the district court erred by finding that the ACCA did not create a separate offense which must be specifically pleaded in the indictment. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

We have rejected this argument numerous times, most recently in United States v. Wilson, 7 F.3d 828 (9th Cir. 1993), holding that the ACCA is a sentencing enhancement statute and does not state a separate offense. Id. at 837-38. It is well-established that, in the absence of intervening precedent nullifying an earlier decision, Estate of Evelyn Eileen Catli v. Donald Wate Catli, 999 F.2d 1405, 1408 n. 5 (9th Cir. 1993), a panel not sitting en banc may not overturn Ninth Circuit precedent, Nichols v. McCormick, 929 F.2d 507, 510 n. 5 (9th Cir. 1991), cert. denied, 112 S. Ct. 1226 (1992). Accordingly, McCorvey's challenge must fail.

AFFIRMED.