     Case: 17-10199      Document: 00515412628         Page: 1    Date Filed: 05/12/2020




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

                                                                                FILED
                                    No. 17-10199                            May 12, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellant

v.

DOMINIC LADALE WALTON,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-364-1


     ON REMAND FROM THE UNITED STATES SUPREME COURT
Before OWEN, Chief Judge, and DENNIS and CLEMENT, Circuit Judges.
PER CURIAM: *
       On November 27, 2018, we issued an opinion rejecting the Government’s
challenge to the district court’s finding that Dominic Ladale Walton was not
subject to an enhancement under the Armed Career Criminal Act (ACCA)
based on three prior convictions for burglary of a habitation, violations of
TEXAS PENAL CODE § 30.02(a). United States v. Walton, 743 F. App’x 552, 553


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10199     Document: 00515412628     Page: 2   Date Filed: 05/12/2020


                                  No. 17-10199

(5th Cir. 2018) (per curiam).      While preserving its challenge for further
appellate review, the Government conceded that its argument was foreclosed
by our decision in United States v. Herrold (Herrold I), 883 F.3d 517, 541 (5th
Cir. 2018) (en banc), cert. granted, judgment vacated, 139 S. Ct. 2712 (2019),
reinstated in part, rev’d in part, United States v. Herrold (Herrold II), 941 F.3d
173 (5th Cir. 2019) (en banc), in which we held that, for the purposes of an
ACCA sentencing enhancement, §§ 30.02(a)(1) and (3) are indivisible and that
§ 30.02(a)(3) is broader than generic burglary because it allows for an entry
and then the subsequent formation of intent. The Government petitioned the
Supreme Court for certiorari. After deciding in Quarles v. United States, 139
S. Ct. 1872, 1877 (2019), that generic burglary occurs “if the defendant forms
the intent to commit a crime at any time during the continuous event of
unlawfully remaining in a building or structure,” the Supreme Court vacated
and remanded Walton’s case for further consideration in light of Quarles. We
requested supplemental briefing from the parties.
      The Government correctly argues that Walton’s challenges to the Texas
burglary statute as being nongeneric for purposes of the ACCA enhancement
are foreclosed. See Herrold II, 941 F.3d at 176-82. The only remaining issue,
which the district court did not address, is whether Walton’s November 2000
and February 2001 burglary convictions, bearing the same commission date of
August 22, 2000, were committed on different occasions for purpose of the
ACCA enhancement. See United States v. Fuller, 453 F.3d 274, 278-79 (5th
Cir. 2006).   We exercise our discretion to remand to the district court to
consider this issue in the first instance. Accordingly, the judgment of the
district court is VACATED, and the case is REMANDED for further
proceedings consistent herewith.




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