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[DO NOT PUBLISH]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
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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.
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Appeal from the United States District Court
for the Northern District of Florida
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(March 9, 2018)
Before TJOFLAT, NEWSOM and BLACK, Circuit Judges.
PER CURIAM:
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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
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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