     Case: 17-10531      Document: 00514732519         Page: 1    Date Filed: 11/21/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 17-10531                            FILED
                                  Summary Calendar                  November 21, 2018
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EMILIO GARZA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:16-CR-261-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Emilio Garza appeals the 188-month sentence imposed following his
guilty plea conviction for being a felon in possession of a firearm. He contends
that our recent decision in United States v. Herrold, 883 F.3d 517 (5th Cir.
2018) (en banc), petition for cert. filed (Apr. 18, 2018) (No. 17-1445), supports
his argument that his prior Texas burglary convictions do not support an
enhancement under the Armed Career Criminal Act (ACCA).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10531    Document: 00514732519     Page: 2   Date Filed: 11/21/2018


                                 No. 17-10531

      This court reviews preserved objections to the application of an ACCA
enhancement de novo, see United States v. McGee, 460 F.3d 667, 668 (5th Cir.
2006), applying the law in effect at the time that it renders a decision, see
Henderson v. United States, 568 U.S. 266, 271, 279 (2013). We held in Herrold
that, in light of Mathis v. United States, 136 S. Ct. 2243 (2016), a conviction
under Texas Penal Code § 30.02(a) cannot serve as an ACCA predicate offense
because the statute is indivisible and sets forth offenses broader then the
generic definition of burglary. See Herrold, 883 F.3d at 537. Thus, the district
court erred in applying the ACCA enhancement to Garza’s sentence based on
his Texas burglary convictions. See id. The Government acknowledges this
error and makes no attempt to argue that the error was harmless. Accordingly,
the judgment is VACATED and the case is REMANDED for resentencing.




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