US v. Joe Jackson Gambill, No. 12-4969 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4969 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOE JACKSON GAMBILL, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:10-cr-00013-JPJ-PMS-1) Submitted: November 26, 2013 Decided: February 7, 2014 Before TRAXLER, Chief Judge, and MOTZ and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender, Nancy C. Dickenson, Assistant Federal Public Defender, Christine Madeleine Lee, Research and Writing Attorney, Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Jean B. Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: After the district court concluded that one of Joe Jackson Gambill s three previous felony convictions was not a violent felony under 18 U.S.C. ยง 924(e) (2012) ( ACCA ), the Government appealed. Based on United States v. Foster, 662 F.3d 291 (4th Cir. 2011), cert. denied, 133 S. Ct. 207 (2012), we determined that the conviction in question properly qualified as an ACCA predicate, vacated Gambill s sentence, and remanded for resentencing. United States v. Gambill ( Gambill I ), 492 F. App x 427, 428-29 (4th Cir. 2012) (No. 11-4049), cert. denied, 133 S. Ct. 899 (2013). On remand, the district court sentenced Gambill to the mandatory challenges minimum his 180 ACCA months of imprisonment. classification again, Gambill arguing that now the Supreme Court s recent decisions in Alleyne v. United States, 133 S. Ct. 2151 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013), indicate that Foster and Gambill I were incorrectly decided and that his sentence violates the Sixth Amendment. We disagree and affirm. Alleyne overruled the distinction, for Sixth Amendment purposes, sentence sentence. between and those facts that that increase increase only a statutory maximum a statutory minimum Alleyne, 133 S. Ct. at 2155 (overruling Harris v. United States, 536 U.S. 545 (2002)). 2 Descamps, on the other hand, defined the circumstances under which a district court may apply the modified categorical approach. at 2281-82, 2284. Descamps, 133 S. Ct. Contrary to Gambill s suggestion, however, neither Alleyne nor Descamps addressed the question confronted in Foster and Gambill application of Shepard United v. the I whether modified States 1 the categorical by finding district approach facts court s violated about a prior conviction that were not previously validat[ed] by [a] process comporting with the Sixth Amendment. United States v. Thompson, 421 F.3d 278, 281-82 (4th Cir. 2005); see Foster, 662 F.3d at 295-97. relationship In fact, Alleyne expressly left untouched the between Apprendi v. New Jersey 2 and Almendarez- Torres v. United States, 3 the Sixth Amendment precedent that the modified categorical approach reconciles. Alleyne, 133 S. Ct. at 2160 n.1; Shepard, 544 U.S. at 20-21. Accordingly, Alleyne and Descamps are of no benefit to Gambill here, and the law of the case doctrine and our inability to overrule the decision of a prior panel of this court preclude us from revisiting the issues decided in Foster and Gambill I. United States v. Fulks, 683 F.3d 512, 521 (4th Cir. 2012), cert. 1 544 U.S. 13 (2005). 2 530 U.S. 466, 490 (2000). 3 523 U.S. 224 (1998). 3 denied, 134 S. Ct. 52 (2013); see United States v. Rivers, 595 F.3d 558, 564 n.3 (4th Cir. 2010) (noting limits on one panel of this court overruling another); United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (discussing exceptions to law of the case doctrine). dispense with contentions are oral We therefore affirm Gambill s sentence. argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 4
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