[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-13871

Non-Argument Calendar

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D.C. Docket Nos. 2:16-cv-08148-SLB; 2:06-cr-00047-SLB-JHE-1

RONALD WAYLAND COLE, 

 Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Alabama

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(January 13, 2021)

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Before MARTIN, BRANCH, and GRANT, Circuit Judges.

PER CURIAM: 

Ronald Wayland Cole, a federal prisoner, appeals the district court’s denial 

of his 28 U.S.C. § 2255 motion to vacate his sentence. The district court granted 

Cole a certificate of appealability on one issue: “Whether Cole’s prior conviction 

for attempted rape in the first degree, in violation of Ala. Code § 13A-6-61(a)(2), 

qualifies as a ‘violent felony’ under the elements clause of the Armed Career 

Criminal Act, § 924(e)(2)(B)(i).” The government concedes that under our binding 

precedent, Cole’s attempted rape conviction does not qualify as a violent felony as 

that term is defined in the Act. We agree, and therefore reverse the judgment of 

the district court and remand for resentencing.

The Armed Career Criminal Act (ACCA) provides that a defendant 

convicted of illegally possessing a firearm in violation of 18 U.S.C. § 922(g) who 

has three prior convictions for violent felonies or serious drug offenses is subject to 

a 15-year mandatory minimum sentence. 18 U.S.C. § 924(e)(1). Without the 

ACCA enhancement, the statutory maximum sentence for a violation of § 922(g) is 

ten years. Id. § 924(a)(2). 

In relevant part, ACCA defines the term “violent felony” as any crime 

punishable by a term of imprisonment exceeding one year that “has as an element 

the use, attempted use, or threatened use of physical force against the person of 

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another.” Id. § 924(e)(2)(B)(i). The Supreme Court has explained that in this 

context, “the phrase ‘physical force’ means violent force—that is, force capable of 

causing physical pain or injury to another person.” Johnson v. United States, 559 

U.S. 133, 140 (2010) (“Curtis Johnson”) (emphasis in the original). Where the 

elements of an offense require only the “merest touching,” the crime is not 

categorically a violent felony within the meaning of the Act. Id. at 139, 142–43.

Here, Cole pleaded guilty to possession with intent to distribute cocaine, in 

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count 1); use of a firearm in 

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)

(Count 2); and possession of a firearm by a convicted felon, in violation of 18 

U.S.C. § 922(g)(1) (Count 3). Cole’s presentence investigation report (PSR) 

identified three prior Alabama “violent felony” convictions that qualified him for a 

mandatory minimum 15-year sentence on Count 3: two for second-degree assault 

and one for attempted first-degree rape.1

 The district court adopted the PSR and 

sentenced Cole to concurrent terms of 202 months’ imprisonment on Count 1 and 

Count 3, and 60 months’ imprisonment, to be served consecutively, on Count 2. 

1 The PSR also referenced a prior state conviction for abuse and neglect, but because the 

government has been unable to identify the relevant criminal statute, it does not contend that the 

abuse-and-neglect conviction counts as a qualifying violent felony. 

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In his § 2255 petition, Cole challenges his sentence on Count 3 on the 

ground that his conviction for Alabama attempted rape is not a violent felony as 

that term is defined in ACCA. Our precedent compels us to agree.

Cole and the government agree that his attempted rape conviction was for a 

violation of Alabama Code § 13A-6-61(a)(2). At the time of Cole’s offense, that 

section provided that a person was guilty of rape in the first degree if he engaged 

“in sexual intercourse with a female who is incapable of consent by reason of 

being physically helpless or mentally incapacitated.” Ala. Code § 13A-6-61(a)(2) 

(1997). For purposes of the Alabama statute, the term “sexual intercourse” has “its 

ordinary meaning and occurs upon any penetration, however slight; emission is not 

required.” Ala. Code § 13A-6-60(1) (1997). This Court has previously held that 

Alabama second-degree rape, which prohibits sexual intercourse with a person 

who is incapable of consent due to age, is not a violent felony under ACCA. 

United States v. Owens, 672 F.3d 966, 971 (11th Cir. 2012); see Ala. Code § 13A6-62. We explained that in light of Curtis Johnson, “the kind of physical force 

required for a qualifying violent felony under the ACCA is not satisfied by the 

merest touching, or in this case, the slightest penetration.” Id.

Like Alabama second-degree rape, the force required for first-degree rape 

under Alabama Code § 13A-6-61(a)(2) is the force required to engage in the act of 

sexual intercourse—which requires only slight penetration under Alabama law. 

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Ala. Code § 13A-6-60(1) (1997). Owens provides that such force does not amount 

to the kind of “violent force” necessary to classify an offense as a “violent felony” 

under ACCA’s elements clause. Accordingly, Cole’s conviction for attempted 

rape under § 13A-6-61(a)(2) is not a qualifying violent felony, and he has, at most, 

two predicate violent felony convictions. His 202-month sentence on Count 3 

therefore exceeds the statutory maximum of ten years’ imprisonment.

The district court implied that Owens had been undermined by Stokeling v. 

United States, 139 S. Ct. 544 (2019), in which the Supreme Court clarified that its 

holding in Curtis Johnson “does not require any particular degree of likelihood or 

probability that the force used will cause physical pain or injury; only potentiality.” 

139 S. Ct. at 554. But even if Stokeling can be said to weaken Owens, we are not 

free to disregard our precedent—and neither is the district court. “Under the wellestablished prior panel precedent rule of this Circuit, the holding of the first panel 

to address an issue is the law of this Circuit, thereby binding all subsequent panels 

unless and until the first panel’s holding is overruled by the Court sitting en banc 

or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th 

Cir. 2001). To overrule our prior precedent, an intervening Supreme Court

decision must be “clearly on point.” Atlantic Sounding Co., Inc. v. Townsend, 496 

F.3d 1282, 1284 (11th Cir. 2007) (citation omitted). “Even if the reasoning of an 

intervening high court decision is at odds with a prior appellate court decision, that 

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does not provide the appellate court with a basis for departing from its prior 

decision.” United States v. Vega-Castillo, 540 F.3d 1235, 1237 (11th Cir. 2008). 

We conclude that under Curtis Johnson and Owens, Cole’s conviction for 

attempted rape in violation of Alabama Code § 13A-6-61(a)(2) is not a “violent 

felony” within the meaning of ACCA. Because Cole did not have three prior 

violent felony convictions, his 202-month sentence on Count 3 exceeds the 

statutory maximum. We therefore reverse the district court’s denial of Cole’s 

§ 2255 motion and remand for resentencing.

REVERSED AND REMANDED.

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