Kenneth Lester Baxley v. USA, No. 17-13764 (11th Cir. 2018)
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Case: 17-13764 Date Filed: 03/09/2018 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-13764 Non-Argument Calendar ________________________ D.C. Docket Nos. 5:16-cv-00132-RH-GRJ; 5:03-cr-00040-RH-GRJ-1 KENNETH LESTER BAXLEY, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Northern District of Florida ________________________ (March 9, 2018) Before TJOFLAT, NEWSOM and BLACK, Circuit Judges. PER CURIAM: Case: 17-13764 Date Filed: 03/09/2018 Page: 2 of 3 Kenneth Baxley appeals the denial of his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, asserting that his two prior convictions for Georgia burglary do not qualify as predicate offenses under the Armed Career Criminal Act (the ACCA). After review, we affirm. 1 Baxley’s appeal hinges on the proposition that Georgia’s burglary statute is indivisible. Baxley acknowledges the issue was decided against him in United States v. Gundy, 842 F.3d 1156 (11th Cir. 2016), cert. denied, 138 S. Ct. 66 (2017). In Gundy, our Court held the Georgia burglary statute under which Baxley was convicted is divisible because “the Georgia prosecutor must select and identify the locational element of the place burgled—whether the place burgled was a dwelling, building, railroad car, vehicle, or watercraft—[ ] the hallmark of a divisible statute.” Id. at 1167. A petition for certiorari was pending when Baxley appealed, and his opening brief acknowledges the appeal was taken in anticipation of a favorable decision by the Supreme Court. The Supreme Court has, however, since denied certiorari. Under our Court’s prior panel precedent rule, “a prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). We cannot entertain Baxley’s 1 Whether a conviction is a violent felony for purposes of the ACCA is a question of law we consider de novo. United States v. Canty, 570 F.3d 1251, 1254 (11th Cir. 2009). 2 Case: 17-13764 Date Filed: 03/09/2018 Page: 3 of 3 argument that Gundy was incorrectly decided because we have “categorically reject[ed] any exception to the prior panel precedent rule based upon a perceived defect in the prior panel’s reasoning or analysis as it relates to the law in existence at that time.” Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001). Gundy controls, and the judgment of the district court is AFFIRMED. 3
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