United States v. Kimble Jones ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4589
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KIMBLE DWEESE JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-cr-00196-D-1)
Submitted: March 20, 2013 Decided: March 25, 2013
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kimble Dweese Jones pled guilty to one count of being
a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2006). The district court sentenced him to 210
months of imprisonment. Jones now appeals. In accordance with
Anders v. California, 386 U.S. 738 (1967), Jones’ attorney has
filed a brief certifying that there are no meritorious issues
for appeal but questioning whether breaking and entering is a
qualifying predicate violent felony for Armed Career Criminal
Act (“ACCA”) purposes, whether Jones’ sentence violated the
Sixth Amendment because the court increased the term of
imprisonment based on facts not proven beyond a reasonable
doubt, and whether the ACCA’s current definition of a “violent
felony” is unconstitutionally vague. Jones received notice of
his right to file a supplemental pro se brief, but has not done
so. Finding no error, we affirm.
First, counsel asks this court to reconsider our
decision in United States v. Thompson, 588 F.3d 197 (4th Cir.
2009), which forecloses any argument that a North Carolina
breaking and entering offense does not constitute a crime of
violence for ACCA purposes. In Thompson, we held that “a North
Carolina conviction for breaking and entering . . . is, as a
matter of law, a violent felony within the meaning of ACCA.”
Thompson, 588 F.3d at 202 (internal quotation marks omitted).
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This court has rejected Jones’ argument, and a panel cannot
overrule a prior panel decision of this court. Watkins v.
SunTrust Mortg., Inc., 663 F.3d 232, 241 (4th Cir. 2011)
(internal quotation marks omitted).
Jones next argues that his sentence as an armed career
criminal violated his Sixth Amendment rights because his
sentence was imposed based on uncharged facts about a prior
conviction and was not proven beyond a reasonable doubt.
However, we have consistently rejected this argument. United
States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005); see also
United States v. Thompson, 421 F.3d 278, 283 (4th Cir. 2005).
Finally, Jones contends that, in the wake of the
Supreme Court’s decisions in Begay v. United States, 553 U.S.
137 (2008), and Chambers v. United States, 555 U.S. 122 (2009),
the definition of a “violent felony” does not provide the
“constitutionally required notice of proscribed conduct nor
clarity of legislation necessary to prevent arbitrary
enforcement and sentencing.” In United States v. Hudson, 673
F.3d 263, 268-69 (4th Cir. 2012), cert. denied, 133 S. Ct. 207(2012), Hudson raised the issue of whether the residual clause
under 18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally vague.
We noted that the issue was waived because it was not raised in
the opening brief. Nevertheless, we stated that
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notwithstanding [Hudson’s] waiver, the Supreme Court
has consistently declined to find the residual clause
void for vagueness. Most recently in Sykes v. United
States, 131 S. Ct. 2267 (2011), the Court noted that
although ACCA’s general and qualitative approach to
defining violent felonies may at times be more
difficult for courts to implement, it is within
congressional power to enact.
673 F.3d at 268-69 (quoting Sykes, 131 S. Ct. at 2277) (internal
quotation marks omitted). Likewise, the court in United
States v. Hart, 674 F.3d 33, 41 n.3 (1st Cir. 2012), rejected
the argument that the residual clause is unconstitutionally
vague, citing James v. United States, 550 U.S. 192, 210 n.6
(2007). See also United States v. Gore, 636 F.3d 728, 742 (5th
Cir. 2011) (same). Thus, this argument is without merit.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Therefore, we affirm Jones’ conviction and sentence. This court
requires counsel to inform Jones, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Jones requests that a petition be filed but counsel
believes such petition would be frivolous, counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Jones. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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