Carey Lamar Childs v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 8, 2019
• Docket: 17-14904
• Status: Unpublished

Opinion

Case: 17-14904 Date Filed: 08/08/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14904 Non-Argument Calendar ________________________

D.C. Docket Nos. 1:16-cv-08064-LSC; 1:10-cr-00226-LSC-TMP-1

CAREY LAMAR CHILDS,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(August 8, 2019)

Before MARCUS, ROSENBAUM, and EDMONDSON, Circuit Judges. Case: 17-14904 Date Filed: 08/08/2019 Page: 2 of 4

PER CURIAM:

Carey Lamar Childs, a federal prisoner proceeding pro se,* appeals the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate his 188-month

sentence, imposed under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e). No reversible error has been shown; we affirm.

In 2010, Childs pleaded guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). The sentencing court determined that Childs

had been convicted previously of three Alabama offenses, each of which qualified

as a “violent felony” under the ACCA: first-degree robbery, first-degree assault,

and second-degree assault. Because Childs qualified as a career offender, the

sentencing court imposed an enhanced sentence under the ACCA. Childs filed no

direct appeal.

In 2016, Childs filed the pro se section 2255 motion at issue in this appeal.

In pertinent part, Childs argued that his Alabama conviction for first-degree

robbery no longer qualified as a violent felony in the light of the Supreme Court’s

decision in Johnson v. United States, 135 S. Ct. 2551 (2015) (striking down as

* We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 2 Case: 17-14904 Date Filed: 08/08/2019 Page: 3 of 4

unconstitutionally vague the ACCA’s residual clause). The district court denied

the motion and denied Childs a certificate of appealability (“COA”).

On 22 February 2018, this Court granted Childs a COA on this issue:

“Whether the district court erred in denying Mr. Childs’s 28 U.S.C. § 2255 motion

on the ground that his prior conviction for Alabama first-degree robbery still

qualified as a violent felony under [the ACCA] in light of Johnson v. United

States, 135 S. Ct. 2551 (2015)?”

In reviewing the denial of a motion to vacate under section 2255, we review

de novo the district court’s legal conclusions and review the district court’s factual

findings for clear error. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir.

2014). We review de novo whether a conviction is a violent felony for purposes of

the ACCA. United States v. Canty, 570 F.3d 1251, 1254 (11th Cir. 2009).

On 15 March 2018 (after the COA issued in this appeal), this Court

concluded that a conviction for first-degree robbery in Alabama is a “violent

felony” under the ACCA’s elements clause and, thus, still qualifies as a predicate

offense after Johnson. See In re Welch, 884 F.3d 1319, 1324 (11th Cir. 2018)

(denying an application for leave to file a second or successive section 2255

motion). We are bound by this Court’s decision in In re Welch. See United States

v. St. Hubert, 909 F.3d 335, 345-46 (11th Cir. 2018) (“our prior-panel-precedent

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rule applies with equal force as to prior panel decisions published in the context of

application to file second or successive petitions.”); United States v. Archer, 531

F.3d 1347, 1352 (11th Cir. 2008) (under this 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.”).

Because Childs’s only argument on appeal is now foreclosed by this Court’s

binding precedent, we affirm.

AFFIRMED.