Opinion
No. 14-13865
12-03-2015
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDRE COLLINS, Defendant-Appellant.
[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket No. 8:14-cr-00130-CEH-TBM-1 Appeal from the United States District Court for the Middle District of Florida Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges. PER CURIAM:
Andre Collins appeals his sentence of 151 months of imprisonment following his plea of guilty to distributing crack cocaine. 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). Collins challenged, for the first time on appeal, his classification as a career offender, see United States Sentencing Guidelines Manual § 4B1.1 (Nov. 2013), on the ground that his prior conviction for resisting an officer with violence, Fla. Stat. § 843.01, did not qualify as a crime of violence under the residual clause. At our direction, the parties have filed supplemental letter briefs addressing what, if any, effect Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), has on this appeal. Because Collins now concedes that there is no reversible error, we affirm.
Collins acknowledges that the district court did not err, much less plainly err, by sentencing him as a career offender. In his supplemental brief, Collins concedes that his challenge to the use of his prior conviction as a predicate offense is foreclosed by our decision in United States v. Hill, 799 F.3d 1318 (11th Cir. 2015), where we "held that a prior conviction for resisting an officer with violence categorically qualifies as a violent felony" under the elements clause of the career offender guideline. Id. at 1322-23. In the alternative, Collins also concedes that any argument that the residual clause of the career offender guideline is void for vagueness is foreclosed by our recent decision in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015). As we explained in Matchett, "[b]ecause there is no constitutional right to sentencing guidelines—or, more generally, to a less discretionary application of sentences than that permitted prior to the Guidelines—the limitations the Guidelines place on a judge's discretion cannot violate a defendant's right to due process by reason of being vague." Id. at 1194-95 (quoting United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990)). Collins disagrees with our precedents, but "[u]nder the prior precedent rule, we are bound to follow a prior binding precedent unless and until it is overruled by this court en banc or by the Supreme Court," United States v. Martinez, 606 F.3d 1303, 1305 (11th Cir. 2010) (quoting United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008)).
We AFFIRM Collins's sentence.