Richard A. Jiles v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 10, 2018
• Docket: 17-14899
• Status: Unpublished

Opinion

Case: 17-14899 Date Filed: 08/10/2018 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14899 Non-Argument Calendar ________________________

D.C. Docket Nos. 4:15-cr-00194-LGW-GRS-1, 4:17-cv-00043-LGW-GRS

RICHARD A. JILES,

Defendant-Appellant,

versus

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

________________________

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

(August 10, 2018)

Before WILSON, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

Richard Jiles appeals his conviction and sentence for being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The Case: 17-14899 Date Filed: 08/10/2018 Page: 2 of 3

district court granted him leave to file an out-of-time appeal as the result of his 28

U.S.C. § 2255 proceeding and the district court’s order granting in part his § 2255

motion. The district court granted Jiles a certificate of appealability on the issue of

whether he was entitled to a de novo resentencing hearing. Jiles also argues on

appeal that his indictment was defective and his prior felony conviction for

Georgia burglary was not a predicate offense under the Armed Career Criminal

Act (ACCA). After careful review of the briefs and record, we affirm.

When an out-of-time direct appeal is warranted, the district court should: (1)

vacate the criminal judgment from which the defendant wishes to appeal; (2)

impose the same sentence; (3) upon reimposition of the sentence, advise the

defendant of all the rights associated with an appeal from a criminal sentence; and

(4) advise the defendant of the deadline for filing a notice of appeal. United States

v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000). A defendant does not have a

right to a new sentencing hearing or a right to be present when resentenced under

the Phillips procedure. See United States v. Parrish, 427 F.3d 1345, 1348 (11th

Cir. 2005) (per curiam). The district court properly followed the Phillips

procedure in this case, so we now turn to the merits of the appeal.

First, Jiles argues that the indictment fails to allege that, at the time of the

offense, he knew that he was a felon. But it is not necessary for the government to

prove that Jiles knew that he was a convicted felon in order to be convicted under

2 Case: 17-14899 Date Filed: 08/10/2018 Page: 3 of 3

§ 922(g)(1). United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997) (per

curiam). Thus, Jiles’s indictment was not defective.

Second, Jiles argues for the first time on appeal that Georgia’s burglary

statute is not an ACCA predicate offense. We held in United States v. Gundy that

Georgia burglary is a violent felony, pursuant to the modified categorical approach,

when a defendant has burglarized a dwelling house or building. See Gundy, 842

F.3d 1156, 1168–69 (11th Cir. 2016). We must apply Gundy under the prior-

panel-precedent rule. See United States v. Archer, 531 F.3d 1347, 1352 (11th

Cir. 2008). Thus, the district court did not plainly err in classifying Jiles as an

armed career criminal.

AFFIRMED.