UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4018
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRYL NICHOLS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:09-cr-00063-CCB-1)
Submitted: November 22, 2011 Decided: January 6, 2012
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Meghan S. Skelton, Staff
Attorney, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Clinton J. Fuchs, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryl Nichols appeals the 180-month armed career
criminal sentence imposed by the district court following his
guilty plea to possession of ammunition by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2006). On appeal, Nichols
primarily contends that the district court erred in designating
him as an armed career criminal. Nichols also asserts a
conflict between the Armed Career Criminal Act’s (ACCA)
mandatory minimum sentence and the general sentencing statute,
18 U.S.C. § 3553(a) (2006). Finding no error, we affirm.
Nichols first argues that the district court erred in
finding that his conviction for resisting arrest was a violent
felony for purposes of the ACCA. Nichols’ argument, however, is
foreclosed by our decision in United States v. Jenkins, 631 F.3d
680, 685 (4th Cir. 2011) (holding that Maryland common law crime
of resisting arrest is crime of violence for purposes of career
offender enhancement). 1 It is axiomatic that “[a] panel of this
court cannot overrule, explicitly or implicitly, the precedent
set by a prior panel of this court. Only the Supreme Court or
1
Because “[t]he ACCA defines ‘violent felony’ in a manner
substantively identical to the definition of a ‘crime of
violence’ in [U.S. Sentencing Guidelines Manual] § 4B1.2,”
precedent defining either term applies with equal force to the
other term. United States v. Jarmon, 596 F.3d 228, 231 n.* (4th
Cir.), cert. denied, 131 S. Ct. 145 (2010).
2
this court sitting en banc can do that.” United States v.
Rivers, 595 F.3d 558, 564 n.3 (4th Cir. 2010) (internal
quotation marks omitted). Nothing in the Supreme Court’s recent
decision in Sykes v. United States, 131 S. Ct. 2267 (2011),
leads us to conclude that Jenkins is no longer good law.
Therefore, we conclude that the district court properly
sentenced Nichols as an armed career criminal. 2
Nichols also argues that the ACCA’s mandatory minimum
sentencing scheme conflicts with § 3553(a)’s mandate to “impose
a sentence sufficient, but not greater than necessary” in light
of that section’s enumerated purposes. The Sentencing Reform
Act, of which § 3553(a) is a part, provides that a defendant
should be sentenced in accordance with its provisions to achieve
the purposes of § 3553(a)(2) “[e]xcept as otherwise specifically
provided.” 18 U.S.C. § 3551(a) (2006). Every appellate court
to have authoritatively addressed this issue has concluded that
statutes setting out a mandatory minimum sentence fall within
the “[e]xcept as otherwise specifically provided” clause and do
not conflict with § 3553(a). See United States v. Luong, 627
F.3d 1306, 1312 (9th Cir. 2010), cert. denied, __ U.S. __, 80
U.S.L.W. 3185 (U.S. Oct. 3, 2011) (No. 10-10885); United
2
Nichols does not dispute that he has two qualifying drug
offenses.
3
States v. Sutton, 625 F.3d 526, 529 (8th Cir. 2010); United
States v. Grober, 624 F.3d 592, 611 (3d Cir. 2010); United
States v. Samas, 561 F.3d 108, 110-11 (2d Cir. 2009); United
States v. Franklin, 499 F.3d 578, 585 (6th Cir. 2007).
Moreover, following the issuance of United States v.
Booker, 543 U.S. 220 (2005), the Supreme Court has reiterated
that, although the Guidelines are now advisory, “courts remain
bound by [statutory] mandatory minimum sentences.” Kimbrough v.
United States, 552 U.S. 85, 107 (2007); see United States v.
Robinson, 404 F.3d 850, 862 (4th Cir. 2005) (“Booker did nothing
to alter the rule that judges cannot depart below a statutorily
provided minimum sentence. Except upon motion of the Government
on the basis of substantial assistance, a district court still
may not depart below a statutory minimum.”) (citing 18 U.S.C.
§ 3553(e) (2006)). “Courts have uniformly rejected the claim
that § 3553(a)’s ‘no greater than necessary’ language authorizes
a district court to sentence below the statutory minimum.”
United States v. Cirilo-Muñoz, 582 F.3d 54, 55 (1st Cir. 2009)
(collecting cases). We therefore conclude that Nichols’
argument is meritless.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
4
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
5