           Case: 16-17082   Date Filed: 08/30/2018   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17082
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:16-cr-00221-LMM-JSA-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JACOBY BURNS,
a.k.a. JB,

                                                         Defendant-Appellant.

                       ________________________

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

                             (August 30, 2018)

Before JORDAN, ROSENBAUM, and HULL, Circuit Judges.

PER CURIAM:
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      Jacoby Burns appeals his sentence for distributing heroin, in violation of 21

U.S.C. § 841. In calculating Burns’s guideline range, the district court applied the

career-offender enhancement, U.S.S.G. § 4B1.1, based in part on a prior Georgia

felony conviction for obstruction of a law enforcement officer under O.C.G.A.

§ 16-10-24(b). Burns contends that felony obstruction under § 16-10-24(b) is not a

“crime of violence” for purposes of the career-offender enhancement. He concedes

that this argument is foreclosed by our decision in United States v. Brown, 805

F.3d 1325 (11th Cir. 2015), but he asserts that Brown has been undermined to the

point of abrogation. Because Brown remains binding, we affirm.

      The Sentencing Guidelines provide for increased penalties when a defendant

is a “career offender.” See U.S.S.G. § 4B1.1. A defendant in a felony drug case is

a career offender if he has “at least two prior felony convictions of either a crime

of violence or a controlled substance offense.” Id. § 4B1.1(a). Section 4B1.2

defines “crime of violence” to include an offense that “has as an element the use,

attempted use, or threatened use of physical force against the person of another.”

Id. § 4B1.2(a). We refer to this definition as the “elements clause.”

      In Brown, we held that a conviction for felony obstruction under O.C.G.A.

§ 16-10-24(b) “categorically meets the ‘use, attempted use, or threatened use of

physical force’ requirement of the elements clause” of the Armed Career Criminal

Act (“ACCA”).      Brown, 805 F.3d at 1327.       We said that “Georgia’s felony


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obstruction statute applies only to those who obstruct a law enforcement officer

‘by offering or doing violence’ to the officer’s person.” Id. at 1327 (quotation

marks omitted). And we found that, under Georgia law, the amount of physical

force required to meet the element of “offering or doing violence” was enough to

satisfy the elements clause. Id. at 1327–28.

      Although Brown was decided under the ACCA, we are bound by that

decision here. See United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.

2008) (prior panel decisions are binding unless and until they are overruled by the

Supreme Court or this Court en banc). As we have noted on several occasions, the

elements clause of the ACCA is “substantially the same” as the elements clause of

the career-offender guideline. E.g., United States v. Dixon, 874 F.3d 678, 680

(11th Cir. 2017); United States v. Martin, 864 F.3d 1281, 1282–83 (11th Cir.

2017). For that reason, we rely on cases interpreting the ACCA’s elements clause

when interpreting the guidelines’ elements clause. Dixon, 874 F.3d at 680. Burns

does not suggest that the force required under the ACCA is any different than the

force required under § 4B1.2(a). So it follows that an offense that requires force

sufficient to satisfy the ACCA’s elements clause necessarily also satisfies

§ 4B1.2(a)’s elements clause.

      While Burns concedes that Brown is directly on point, he argues that it is not

binding because it has been undermined to the point of abrogation by our en banc


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decision in United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017) (en banc),

and the Supreme Court’s decision in Descamps v. United States, 570 U.S. 254

(2013). He asserts that Brown failed to look to the least of the acts criminalized by

§ 16-10-24(b), as defined by state law, when conducting the categorical analysis.

      Burns’s arguments are unavailing. Descamps preceded Brown and cannot,

therefore, abrogate it. See United States v. Fritts, 841 F.3d 937, 942 (11th Cir.

2016) (“There is never an exception carved out for overlooked or misinterpreted

Supreme Court precedent under the prior panel precedent rule.”). As for Vail-

Bailon, Burns fails to explain how its holding applies here. Rather, he relies on

Vail-Bailon only for its restatement of the analytical framework that was

established before Brown was decided. So Vail-Bailon, too, does not help his

cause. At bottom, then, Burns’s argument is simply that Brown misread Georgia

law on the issue of the level of force required to convict under § 16-10-24(b).

      But “[i]t does not matter whether a prior case was wrongly decided; whether

it failed to consider certain critical issues or arguments; or whether it lacked

adequate legal analysis to support its conclusions.” United States v. Lee, 886 F.3d

1161, 1163 n.3 (11th Cir. 2018) (citations omitted); see id. at 1164 (holding that a

prior panel decision was binding even though its “discussion of the elements clause

. . . was brief and conclusory, and the panel did not analyze Florida case law”). So




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even if we were convinced that Brown was wrongly decided—though, to be clear,

we express no view on the matter—we would still be bound by it.

      Because Brown has not been overturned or undermined to the point of

abrogation, it remains binding law. The district court therefore properly concluded

that Burns’s conviction for felony obstruction under O.C.G.A. § 16-10-24(b)

categorically qualified as a crime of violence under the elements clause of the

career-offender guideline. See U.S.S.G. § 4B1.2(a)(1). We affirm his sentence.

      AFFIRMED.




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