     Case: 17-50447      Document: 00514671731         Page: 1    Date Filed: 10/08/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 17-50447                             FILED
                                  Summary Calendar                     October 8, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SIMON CASTRO, JR.,
                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:16-CV-152


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Simon Castro, Jr., federal prisoner # 26068-180, was convicted of being
a felon in possession of a firearm. The district court sentenced Castro under
the Armed Career Criminal Act (ACCA) on account of Castro’s several prior
Texas convictions involving burglaries of habitations. Castro filed a 28 U.S.C.
§ 2255 motion in which he sought to vacate the ACCA sentence based on
United States v. Johnson, 135 S. Ct. 2551 (2015), and Welch v. United States,
136 S. Ct. 1257 (2016). The district court denied the § 2255 motion, and Castro


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-50447     Document: 00514671731    Page: 2    Date Filed: 10/08/2018


                                 No. 17-50447

timely appealed. This court granted a certificate of appealability based on the
decision in United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc),
pets. for cert. filed (April 18, 2018) (No. 17-1445) and (May 21, 2018) (No. 17-
9127), which was issued while the appeal was pending.
      Castro argues that the district court erred in denying his § 2255 motion
because, given Johnson and Herrold, his prior Texas burglary convictions do
not qualify as violent felonies under the ACCA. He asserts that the judgment
denying his § 2255 motion should be vacated and the matter remanded for
resentencing. Whether a prior conviction qualifies as a predicate offense for
purposes of the ACCA is a legal question that we review de novo. See United
States v. Taylor, 873 F.3d 476, 479 (5th Cir. 2017).
      The ACCA provides enhanced penalties for a felon in possession of a
firearm who has three prior convictions for violent felonies or serious drug
offenses.   18 U.S.C. § 924(e)(1).   A violent felony is defined as a crime
punishable by more than one year in prison that (1) has as an element the use,
attempted use, or threatened use of physical force against another (the
elements clause), or (2) is the enumerated offense of burglary, arson, or
extortion, or involves the use of explosives (the enumerated offenses clause), or
(3) “otherwise involves conduct that presents a serious potential risk of
physical injury to another” (the residual clause).        § 924(e)(2)(B); Taylor,
873 F.3d at 477 n.1.
      In Johnson, 135 S. Ct. at 2557, the Supreme Court held that the residual
clause of the ACCA is unconstitutionally vague, and, in Welch, 136 S. Ct. at
1265, it held that Johnson applies retroactively to cases on collateral review.
Thus, to the extent that Castro’s ACCA sentence was based on the residual
clause, it cannot stand. See Johnson, 135 S. Ct at 2557. Johnson, though, has
no effect on the elements or enumerated offenses clauses. See id. at 2563.



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                                No. 17-50447

      Prior to Herrold the Texas burglary statute was regarded as divisible,
and a conviction under Texas Penal Code § 30.02(a)(1) was considered a
generic burglary. See Herrold, 883 F.3d at 529. However, Herrold establishes
that Texas burglary convictions under § 30.02(a)(1), such as Castro’s
convictions, cannot serve as ACCA predicate convictions because the Texas
burglary statute is indivisible and a conviction under § 30.02(a)(3) does not
qualify as generic burglary. See id. at 541. Thus, Castro’s ACCA sentence
cannot stand under the enumerated offenses clause. See id.
      The Government essentially concedes that Castro is entitled to relief
based on the decision in Herrold; however, it moves to hold the appeal in
abeyance. The Government asserts that an abeyance is warranted because its
petition for a writ of certiorari in Herrold is pending and because there are
three other cases presently before the Supreme Court that may have a bearing
on the outcome of the instant appeal.
      Even where the Supreme Court has granted certiorari, this court is
bound by its own precedent, unless and until that precedent is altered by a
decision of the Supreme Court. See Wicker v. McCotter, 798 F.2d 155, 157-58
(5th Cir. 1986). Although there may be circumstances in which an abeyance is
appropriate while a decision of this court is being challenged in the Supreme
Court, we conclude that the circumstances of this matter do not warrant an
abeyance order. As Castro points out, absent the ACCA enhancement his
maximum sentence would have been 10 years of imprisonment, see 18 U.S.C.
§ 924(a)(2), and seemingly he has already been imprisoned for more than that
length of time.
      VACATED        AND   REMANDED;          MOTION     DENIED.          THE
MANDATE SHALL ISSUE FORTHWITH.




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