Charles Foxx v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 4, 2018
• Docket: 17-12779
• Status: Unpublished

Opinion

Case: 17-12779 Date Filed: 09/04/2018 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12779 Non-Argument Calendar ________________________

D.C. Docket Nos. 1:16-cv-20468-DLG, 1:95-cr-00787-DLG-2

CHARLES FOXX,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(September 4, 2018)

Before TJOFLAT, WILSON, and NEWSOM, Circuit Judges.

PER CURIAM:

Charles Foxx, a federal prisoner, appeals the district court’s denial of his 28

U.S.C. § 2255 motion to vacate his sentence. The district court granted a Case: 17-12779 Date Filed: 09/04/2018 Page: 2 of 3

certificate of appealability on one issue: “[W]hether Johnson1 applies to the

Sentencing Guidelines’ career offender provisions when Movant was sentenced

pre-Booker.”2 As Foxx restates it, the issue on appeal is whether Johnson “renders

void for vagueness the residual clause of the career-offender provision in the

Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), which was mandatory at the time

of sentencing.”

This Court has already held that the “Guidelines—whether mandatory or

advisory—cannot be unconstitutionally vague because they do not establish the

illegality of any conduct and are designed to assist and limit the discretion of the

sentencing judge.” In re Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016) (per

curiam).

Foxx first argues that In re Griffin does not bind this panel, as it was decided

in the second or successive application context. This Court has recently proclaimed

that our prior panel precedent rule applies to published second or successive orders

(such as In re Griffin). See United States v. St. Hubert, 883 F.3d 1319, 1329 (11th

Cir. 2018). Although this rule is subject to dissent within the Circuit, see, e.g., In re

Williams, ___ F.3d ___, ___, 2018 WL 3640369, at *2–6 (11th Cir. 2018) (Wilson,

J., specially concurring), it is the one that binds us, and we will follow it. See Smith

v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001) (“Under the well-

1 Johnson v. United States, 135 S. Ct. 2551 (2015). 2 United States v. Booker, 543 U.S. 220 (2005). 2 Case: 17-12779 Date Filed: 09/04/2018 Page: 3 of 3

established prior panel precedent rule of this Circuit, the holding of the first panel

to address an issue is the law of this Circuit, thereby binding all subsequent panels

unless and until the first panel's holding is overruled by the Court sitting en banc or

by the Supreme Court.”).

Next, Foxx argues that Beckles v. United States, 137 S. Ct. 886 (2017),

undermines In re Griffin to the point of abrogation, freeing us from In re Griffin’s

rule. However, Foxx admits that “Beckles did not squarely decide whether the

mandatory Guidelines are susceptible to a vagueness challeng[e],” instead

“repeatedly fram[ing] and analyz[ing] the issue” in the advisory context. But, “[i]n

addition to being squarely on point, the doctrine of adherence to prior precedent

also mandates that the intervening Supreme Court case actually abrogate or

directly conflict with, as opposed to merely weaken, the holding of the prior

panel.” United States v. Kaley, 579 F.3d 1246 (11th Cir. 2009). Therefore, we

cannot deviate from In re Griffin given the current state of the law, and this

forecloses Foxx’s appeal.

AFFIRMED.