           Case: 13-14335   Date Filed: 07/21/2014    Page: 1 of 5


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-14335
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:12-cr-00257-AT-AJB-1



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

versus

DEQUAVIOUS JOHNSON,

                                               Defendant - Appellant.

                      ________________________

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

                             (July 21, 2014)

Before HULL, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:
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      Dequavious Johnson, a federal prisoner, appeals his 70-month sentence after

pleading guilty to possessing a firearm as a felon, in violation of 18 U.S.C.

§ 922(g)(1). Mr. Johnson argues that the residual clause in U.S.S.G. § 4B1.2(a)(2)

defining a “crime of violence” is unconstitutionally vague. Mr. Johnson further

asserts that “robbery by sudden snatching” is not a “crime of violence.” He

acknowledges that our precedent forecloses both of these arguments and only

intends to preserve them for consideration by this Court sitting en banc or the

Supreme Court. We affirm.

      We review constitutional sentencing issues de novo. See United States v.

Harris, 741 F.3d 1245, 1248 (11th Cir. 2014). We also review de novo whether a

prior conviction qualifies as a “crime of violence” under the sentencing guidelines.

See United States v. Contreras, 739 F.3d 592, 594 (11th Cir. 2014).

      The standard base offense level for a violation of § 922(g)(1) is 14, see

U.S.S.G. § 2K2.1(a)(6)(A), but is increased to 20 if the defendant committed the

instant offense “subsequent to sustaining one felony conviction . . . of a crime of

violence.” See § 2K2.1(a)(4)(A). “Crime of violence” is defined, in relevant part,

in U.S.S.G. § 4B1.2 as “any offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that . . . (2) is burglary of a dwelling,

arson, or extortion, involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.” U.S.S.G. §


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4B1.2(a) (emphasis added). The residual clause in § 4B1.2(a)(2) (emphasized

above) is at issue here.

       “[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). As acknowledged by Mr. Johnson, our prior precedent forecloses

his argument that the residual clause is unconstitutionally vague.

      The definitions of “crime of violence” under the Sentencing Guidelines and

“violent felony” under the Armed Career Criminal Act (ACCA) contain virtually

identical residual clauses. See United States v. Alexander, 609 F.3d 1250, 1253

(11th Cir. 2010) (explaining that the definitions of “violent felony” and “crime of

violence” are “virtually identical” and considering whether a crime is a “violent

felony” is similar to considering whether a crime is a “crime of violence”).

      Several years ago, the Supreme Court rejected the argument that the residual

clause of the ACCA is unconstitutionally vague. See James v. United States, 550

U.S. 192, 210 n.6 (2007). The Court stated that the “requirement that an

unenumerated crime ‘otherwise involve conduct that presents a serious potential

risk of physical injury to another’ is not so indefinite as to prevent an ordinary

person from understanding what conduct it prohibits.” Id. In Sykes v. United States,

564 U.S. __, 131 S.Ct. 2267, 2277 (2011) (citation and quotation marks omitted),


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the Supreme Court similarly noted that ACCA’s residual clause “states an

intelligible principle and provides guidance that allows a person to conform his or

her conduct to the law. Although this approach may at times be more difficult for

courts to implement, it is within congressional power to enact.” We too have

concluded that the residual clause of the ACCA is not unconstitutionally vague.

See United States v. Gandy, 710 F.3d 1234, 1239 (11th Cir. 2013).

      Mr. Johnson’s argument that “robbery by sudden snatching” does not fit into

the definition of a “crime of violence” is similarly foreclosed by analogous

precedent. Although have not held explicitly that the residual clause of U.S.S.G.

§ 4B1.2(a)(2) includes “robbery by sudden snatching,” we have held that “robbery

by sudden snatching” is a “violent felony” under the residual clause of the ACCA.

See United States v. Welch, 683 F.3d 1304, 1312-13 (11th Cir. 2012). In Welch, we

concluded that “robbery by sudden snatching” presents “a serious risk of physical

injury to another.” Id. at 1312.

      Based on Supreme Court and Eleventh Circuit precedent, we reject Mr.

Johnson’s argument that the residual clause of U.S.S.G. § 4B1.2 is

unconstitutionally vague. We also conclude, under our analogous precedent, that

the district court properly calculated the base offense level as 20 because

Mr. Johnson’s prior felony conviction of “robbery by sudden snatching”

constitutes a “crime of violence.” Accordingly, we affirm.


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AFFIRMED.




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