     Case: 14-50299   Document: 00513254314        Page: 1   Date Filed: 10/30/2015




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 14-50299                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          October 30, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

CHRISTOPHER MICHAEL HORNYAK,
also known as Christopher Hornyak,

             Defendant - Appellant



                Appeal from the United States District Court
                     for the Western District of Texas




 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
COSTA, Circuit Judge:
      We must decide whether a sentence imposed pursuant to the residual
clause of the Armed Career Criminal Act (ACCA), which the Supreme Court
recently found to be unconstitutionally vague, should be vacated on plain error
review.
      Hornyak pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). That offense ordinarily carries a maximum
sentence of ten years. Id. But if the defendant has three previous convictions
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for a “violent felony or serious drug offense,” then the ACCA elevates the
statutory sentencing range to a minimum of fifteen years and maximum of life.
Id. § 924(e). The statute defines “violent felony” in two ways. A felony qualifies
if it “has as an element the use, attempted use, or threatened use of physical
force against the person of another.” Id. § 924(e)(2)(B)(i). It also qualifies if
the felony “is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious risk of physical injury to
another.” Id. § 924(e)(2)(B)(ii). The “otherwise involves conduct that presents
a serious risk of physical injury to another” language, known as the “residual
clause,” was held unconstitutionally vague in Johnson v. United States, 135
S. Ct. 2551 (2015).
       At Hornyak’s sentencing hearing, which took place prior to Johnson, the
district court found that three convictions implicated the ACCA: two serious
drug offenses and a conviction for evading arrest or detention with a vehicle
under Texas Penal Code § 38.04. 1 We had previously found that this Texas
“evading arrest” offense counted as a “violent felony” under the ACCA’s
residual clause. United States v. Harrimon, 568 F.3d 531, 532, 537 (5th Cir.
2009). Hornyak objected in the district court, arguing that the Texas statute
did not meet the residual clause standard as it did not require use of a motor
vehicle but could instead be committed when a suspect flees on a bicycle. He
did not argue that the residual clause is unconstitutional. The district court
overruled Hornyak’s objection, which Harrimon foreclosed, and sentenced
Hornyak to a prison term of 188 months.




       1 The Probation Office initially classified Hornyak’s California burglary conviction as
a “violent felony,” but then agreed with Hornyak’s objection that it should not be treated as
such under Descamps v. United States, 133 S. Ct. 2276 (2013). That left only three qualifying
convictions.
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                                  No. 14-50299
      On appeal, Hornyak raised two arguments. He again argued that the
Texas offense did not qualify under the residual clause and asked us to
reconsider Harrimon in light of Sykes v. United States, 131 S. Ct. 2267 (2011).
He then for the first time argued that the residual clause is void for vagueness.
Recognizing that both Supreme Court and circuit precedent foreclosed the
constitutional issue, Hornyak noted that he was raising it solely “to preserve
[it] for possible further review by the Supreme Court.” The United States filed
an unopposed motion for summary affirmance, which we granted. 588 F. App’x
384, 386 (2014).
      Hornyak filed a petition for certiorari. After it decided Johnson, the
Supreme Court granted Hornyak’s petition, vacated our ruling, and remanded.
135 S. Ct. 2944, 2944 (2015).
      Because Hornyak did not raise a vagueness challenge to the residual
clause in the sentencing court, we review the issue for plain error.             To
demonstrate plain error, Hornyak must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion
to correct the error only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
      Johnson establishes that it was error to sentence Hornyak under ACCA’s
mandatory minimum provision when one of his qualifying convictions satisfied
only the residual clause. See 135 S. Ct. at 2563 (holding that the residual
clause is unconstitutionally vague). That error was plain and obvious, even
though precedent foreclosed it at the time of sentencing, because the error
became clear in light of a decision announced while this case was still on direct
appeal. Henderson v. United States, 133 S. Ct. 1121, 124–25 (2013). And the
error substantially affected Hornyak’s substantial rights.         He received a
sentence 68 months above the maximum that applies in the absence of the
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                                  No. 14-50299
ACCA enhancement. See United States v. Palmer, 456 F.3d 484, 491 (5th Cir.
2006) (finding that because error “added 60 months to [the defendant’s]
sentence, we have little trouble determining that it affected [his] substantial
rights”).
      That leaves the question of whether the Johnson error seriously affected
the fairness, integrity, or public reputation of the proceeding, in which case we
have discretion to correct it. Although that standard is not met every time an
error affects a defendant’s substantial rights, United States v. Escalante-Reyes,
689 F.3d 415, 425 (5th Cir. 2012) (en banc), it is in this case. Keeping a
defendant in prison for at least an extra 68 months because of a clause in a
statute declared unconstitutionally void during his direct appeal would cast
significant doubt on the fairness of the criminal justice system in such a case.
We have found this final plain error inquiry satisfied on numerous occasions
when a higher sentence resulted not from an unconstitutional statute, but from
misapplication of the Sentencing Guidelines within a lawful statutory
maximum. See, e.g., United States v. Hernandez, 690 F.3d 613, 621 (5th Cir.
2012) (finding plain error in a sentence 12 months outside of the correct
Guidelines range); United States v. Mudekunye, 646 F.3d 281, 290–91 (5th Cir.
2011) (per curiam) (finding that the 19 month “substantial disparity between
the imposed sentence and the applicable Guidelines range warrants the
exercise of our discretion to correct the error”); United States v. John, 597 F.3d
263, 286–88 (5th Cir. 2010) (finding plain error in the imposition of a sentence
21 months outside of the correct Guidelines range). An error of constitutional
magnitude that transforms a ten-year maximum sentence into a fifteen-year
minimum sentence presents an easier call than those cases. Cf. United States
v. Knowles, 29 F.3d 947, 951–52 (5th Cir. 1994) (holding that failure to vacate
a conviction pursuant to a statute later held to violate the Commerce Clause
“would seriously affect the fairness, integrity, and public reputation of judicial
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proceedings”).   We thus conclude that the error in using the ACCA’s now-void
residual clause to set a fifteen-year minimum sentence satisfies all four of the
conditions necessary for us to have discretion to correct it.
      We elect to exercise that discretion to correct the error. The judgment of
the district court therefore is VACATED and the case is REMANDED for
resentencing in light of Johnson.




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