United States v. Andre Collins ( 2015 )

Case: 14-13865 Date Filed: 12/03/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13865
Non-Argument Calendar
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D.C. Docket No. 8:14-cr-00130-CEH-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE COLLINS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 3, 2015)
Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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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
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Case: 14-13865 Date Filed: 12/03/2015 Page: 3 of 3
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.
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