                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                   FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                     ________________________   ELEVENTH CIRCUIT
                                                          JAN 27, 2010
                            No. 09-13118                   JOHN LEY
                        Non-Argument Calendar            ACTING CLERK
                      ________________________

                    D. C. Docket No. 07-00124-CR-S

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

CHRISTOPHER DWAYNE OWENS,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     _________________________

                           (January 27, 2010)

Before EDMONDSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
       Christopher Owens appeals his 293-month sentence following his guilty plea

to possession of a firearm by a convicted felon. Prior to the instant arrest, Owens

had been convicted of various crimes, including ten counts of rape in the second

degree and two counts of sodomy in the second degree, each in violation of

Alabama law. Owens was classified as an “armed career criminal,” and his

sentence was enhanced to 293 months, pursuant to the provisions of U.S.S.G.

§ 4B1.4. On appeal, Owens asserts his sentence was improperly calculated,

because neither second-degree rape nor second-degree sodomy are crimes of

violence, and are thus improper predicate crimes for enhancement under the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e). After review, we affirm.1

       In United States v. Ivory, we concluded rape in the second degree under

Alabama law was a crime of violence because it involved the use of non-

consensual physical force against another. United States v. Ivory, 475 F.3d 1232,

1236 (11th Cir. 2007).2 Prior Eleventh Circuit panel holdings are binding on all

subsequent panels “unless and until they are overruled or undermined to the point

       1
         We review de novo a district court’s determination that a particular conviction is a “violent
felony” within the meaning of the ACCA. United States v. Canty, 570 F.3d 1251, 1254-55 (11th
Cir. 2009).
       2
          Although Ivory was using the definition of crime of violence at U.S.S.G. § 4B1.2(a)(1),
case law interpreting U.S.S.G. § 4B1.2(a) is applicable to interpreting the definition of “violent
felony” under the ACCA. See James v. United States, 550 U.S. 192, 206 (2007) (noting the
Sentencing Guidelines’ “definition of a predicate ‘crime of violence’ closely tracks ACCA’s
definition of ‘violent felony’”).

                                                  2
of abrogation by the Supreme Court or this Court sitting en banc.” United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). “While an intervening decision of

the Supreme Court can overrule the decision of a prior panel of our court, the

Supreme Court decision must be clearly on point.” Id. (citation omitted).

      As Owens concedes, in Ivory, we conclusively addressed – and rejected –

the argument that second-degree rape under Alabama state law does not constitute

a violent felony for purposes of ACCA sentence enhancements. Owens has

presented no evidence that sodomy in the second degree – which also involves

some element of physical force against a minor – should be an exception to the

reasoning in Ivory. Until Ivory is abrogated by either the Supreme Court or this

Court sitting en banc, it remains precedential, and the district court did not err in

relying on it. We therefore affirm.

      AFFIRMED.




                                            3
