[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 27, 2010
No. 09-13118 JOHN LEY
Non-Argument Calendar ACTING CLERK
________________________
D. C. Docket No. 07-00124-CR-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER DWAYNE OWENS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(January 27, 2010)
Before EDMONDSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Christopher Owens appeals his 293-month sentence following his guilty plea
to possession of a firearm by a convicted felon. Prior to the instant arrest, Owens
had been convicted of various crimes, including ten counts of rape in the second
degree and two counts of sodomy in the second degree, each in violation of
Alabama law. Owens was classified as an “armed career criminal,” and his
sentence was enhanced to 293 months, pursuant to the provisions of U.S.S.G.
§ 4B1.4. On appeal, Owens asserts his sentence was improperly calculated,
because neither second-degree rape nor second-degree sodomy are crimes of
violence, and are thus improper predicate crimes for enhancement under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e). After review, we affirm.1
In United States v. Ivory, we concluded rape in the second degree under
Alabama law was a crime of violence because it involved the use of non-
consensual physical force against another. United States v. Ivory, 475 F.3d 1232,
1236 (11th Cir. 2007).2 Prior Eleventh Circuit panel holdings are binding on all
subsequent panels “unless and until they are overruled or undermined to the point
1
We review de novo a district court’s determination that a particular conviction is a “violent
felony” within the meaning of the ACCA. United States v. Canty, 570 F.3d 1251, 1254-55 (11th
Cir. 2009).
2
Although Ivory was using the definition of crime of violence at U.S.S.G. § 4B1.2(a)(1),
case law interpreting U.S.S.G. § 4B1.2(a) is applicable to interpreting the definition of “violent
felony” under the ACCA. See James v. United States, 550 U.S. 192, 206 (2007) (noting the
Sentencing Guidelines’ “definition of a predicate ‘crime of violence’ closely tracks ACCA’s
definition of ‘violent felony’”).
2
of abrogation by the Supreme Court or this Court sitting en banc.” United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). “While an intervening decision of
the Supreme Court can overrule the decision of a prior panel of our court, the
Supreme Court decision must be clearly on point.” Id. (citation omitted).
As Owens concedes, in Ivory, we conclusively addressed – and rejected –
the argument that second-degree rape under Alabama state law does not constitute
a violent felony for purposes of ACCA sentence enhancements. Owens has
presented no evidence that sodomy in the second degree – which also involves
some element of physical force against a minor – should be an exception to the
reasoning in Ivory. Until Ivory is abrogated by either the Supreme Court or this
Court sitting en banc, it remains precedential, and the district court did not err in
relying on it. We therefore affirm.
AFFIRMED.
3