           Case: 17-13764   Date Filed: 03/09/2018   Page: 1 of 3


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13764
                        Non-Argument Calendar
                      ________________________

     D.C. Docket Nos. 5:16-cv-00132-RH-GRJ; 5:03-cr-00040-RH-GRJ-1



KENNETH LESTER BAXLEY,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                      ________________________

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

                             (March 9, 2018)

Before TJOFLAT, NEWSOM and BLACK, Circuit Judges.

PER CURIAM:
                Case: 17-13764       Date Filed: 03/09/2018      Page: 2 of 3


       Kenneth Baxley appeals the denial of his motion to vacate, set aside, or

correct sentence pursuant to 28 U.S.C. § 2255, asserting that his two prior

convictions for Georgia burglary do not qualify as predicate offenses under the

Armed Career Criminal Act (the ACCA). After review, we affirm. 1

       Baxley’s appeal hinges on the proposition that Georgia’s burglary statute is

indivisible. Baxley acknowledges the issue was decided against him in United

States v. Gundy, 842 F.3d 1156 (11th Cir. 2016), cert. denied, 138 S. Ct. 66 (2017).

In Gundy, our Court held the Georgia burglary statute under which Baxley was

convicted is divisible because “the Georgia prosecutor must select and identify the

locational element of the place burgled—whether the place burgled was a

dwelling, building, railroad car, vehicle, or watercraft—[ ] the hallmark of a

divisible statute.” Id. at 1167. A petition for certiorari was pending when Baxley

appealed, and his opening brief acknowledges the appeal was taken in anticipation

of a favorable decision by the Supreme Court.

       The Supreme Court has, however, since denied certiorari. Under our

Court’s prior panel precedent rule, “a prior panel’s holding is binding on all

subsequent panels unless and until it is overruled or undermined to the point of

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

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). We cannot entertain Baxley’s

       1
        Whether a conviction is a violent felony for purposes of the ACCA is a question of law
we consider de novo. United States v. Canty, 570 F.3d 1251, 1254 (11th Cir. 2009).
                                               2
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argument that Gundy was incorrectly decided because we have “categorically

reject[ed] any exception to the prior panel precedent rule based upon a perceived

defect in the prior panel’s reasoning or analysis as it relates to the law in existence

at that time.” Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001). Gundy

controls, and the judgment of the district court is

AFFIRMED.




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