UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. § 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 minimum 180 months of imprisonment. Gambill now
challenges his ACCA classification again, arguing that 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, between facts that increase a statutory maximum
sentence and those that increase only a statutory minimum
sentence. Alleyne, 133 S. Ct. at 2155 (overruling Harris v.
United States, 536 U.S. 545 (2002)). Descamps, on the other
2
hand, defined the circumstances under which a district court may
apply the modified categorical approach. Descamps, 133 S. Ct.
at 2281-82, 2284. Contrary to Gambill’s suggestion, however,
neither Alleyne nor Descamps addressed the question confronted
in Foster and Gambill I — whether the district court’s
application of the modified categorical approach violated
Shepard v. United States 1 by finding facts 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. In fact, Alleyne expressly left untouched the
relationship 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). We therefore affirm Gambill’s sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
4