     Case: 17-50274      Document: 00514567860         Page: 1    Date Filed: 07/24/2018




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

                                      No. 17-50274
                                                                                Fifth Circuit

                                                                              FILED
                                                                          July 24, 2018

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

DAVID JAMES STEWART,

              Defendant - Appellant




                 Appeals from the United States Court of Appeals
                        for the Western District of Texas
                             USDC No. 1:16-CV-781


Before KING, SOUTHWICK, and HO, Circuit Judges.
PER CURIAM:*
       David James Stewart filed a motion for habeas relief from his federal
conviction.    He sought to vacate his sentence which he argued had been
improperly enhanced by two prior Texas burglary convictions. The district
court denied the motion as foreclosed by our precedent. While his appeal here
was pending, we held in a different case that a conviction under the same Texas
burglary statute is not a violent felony under the Armed Career Criminal Act.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-50274
The Government concedes that Stewart is entitled to the relief he seeks,
though it would prefer we delay ruling until the Supreme Court has considered
whether to review our decision on the Texas statutes.          We reject that
suggestion and VACATE and REMAND for re-sentencing.


              FACTUAL AND PROCEDURAL BACKGROUND
      In 2002, Texas law enforcement officers discovered two firearms in the
home of David James Stewart.        Stewart pled guilty to being a felon in
possession of a firearm under 18 U.S.C. § 922(g). In the factual basis for his
plea, Stewart admitted to possessing the firearms. He also admitted to four
prior Texas felony convictions: two convictions for burglary of a habitation,
robbery, and possession with the intent to distribute cocaine. He agreed that
he was subject to the sentencing enhancement of the Armed Career Criminal
Act (“ACCA”). See 18 U.S.C. § 924(e). The district court sentenced Stewart to
210 months of imprisonment and five years of supervised release.
      In 2015, the Supreme Court held that an increased sentence under the
ACCA’s residual clause violates due process because the clause is
unconstitutionally vague. United States v. Johnson, 135 S. Ct. 2551, 2563
(2015).   The following year, the Court held that Johnson announced a
substantive rule applicable retroactively on collateral review. Welch v. United
States, 136 S. Ct. 1257, 1265 (2016).
      In June 2016, Stewart sought habeas relief under 28 U.S.C. § 2255,
arguing that his Texas burglary and robbery convictions no longer qualified as
violent felonies under the ACCA in light of Johnson. Specifically, he argued
that the Texas burglary statute lacks an element of physical force, is
indivisible, and encompasses conduct outside the generic definition of
“burglary.” In March 2017, the district court denied Stewart’s Section 2255
motion in accordance with our precedent then holding that the Texas burglary
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                                 No. 17-50274
statute is divisible. United States v. Uribe, 838 F.3d 667, 671 (5th Cir. 2016);
United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014). The court
likewise denied Stewart a certificate of appealability (“COA”).         Stewart
appealed.
      While his appeal was pending, we overruled Uribe en banc, holding that
the Texas burglary statute is indivisible and cannot be an ACCA predicate.
United States v. Herrold, 883 F.3d 517, 541 (5th Cir. 2018) (en banc), petition
for cert. filed, No. 17-1445 (U.S. Apr. 19, 2018). On May 8, 2018, we granted
Stewart a COA “as to the issue whether he should receive relief on his claim
that he no longer qualifies for sentencing under the ACCA.”


                                 DISCUSSION
      Stewart argues that under Herrold, his two Texas burglary convictions
cannot qualify as ACCA predicates, thereby disqualifying him from the
enhancement. The Government concedes that Herrold requires that Stewart’s
sentence be vacated and remanded for re-sentencing. It nonetheless requests
that the panel hold Stewart’s appeal in abeyance pending the Supreme Court’s
consideration of the Government’s pending certiorari petition in Herrold. To
preserve its position, the Government challenges our holding in Herrold by
arguing that Stewart was properly subject to the ACCA enhancement under
the Texas burglary statute.
      The Government offers two reasons for holding Stewart’s appeal in
abeyance.   First, abeyance is warranted because its petition for a writ of
certiorari in Herrold is pending. Second, three other cases presently before the
Supreme Court “have a direct bearing on the outcome of this appeal and
Herrold’s viability.”
      Of the three cases cited by the Government, a writ of certiorari has been
granted on two. United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc),
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                                   No. 17-50274
cert. granted, 138 S. Ct. 1592 (2018); United States v. Sims, 854 F.3d 1037 (8th
Cir. 2017), cert. granted, 138 S. Ct. 1592 (2018). These cases address whether
burglary of a nonpermanent or mobile structure adapted for overnight use can
qualify as “burglary.” The Government argues that disposition of these cases
could affect our holding in Herrold.         “Until these cases are decided,” the
Government argues, “this Court’s direction to the district court would be
arguably incomplete.” Accordingly, holding the appeal in abeyance would
“simplify the resolution of this matter, save resources, and serve judicial
economy.” In addition, the Government cites to a Sixth Circuit case holding
that generic burglary does not require an intent to commit a felony at the time
of entry contrary to Herrold. United States v. Quarles, 850 F.3d 836, 840 (6th
Cir. 2017), petition for cert. filed, No. 17-778 (U.S. Nov. 24, 2017). If the
Supreme Court were to adopt the Sixth Circuit approach, the Government
argues “the Texas burglary statute would still qualify as generic burglary even
if the statute is otherwise indivisible as per Herrold.”
      In response, Stewart starts with quoting the language of our COA grant
directing an expedited briefing schedule because “Stewart has already served
more than the statutory maximum applicable without the ACCA enhancement
should he prevail.” He argues that given his current scheduled release date of
March 4, 2019, the Supreme Court’s action on Herrold or Quarles could well be
too late to affect him.
      Stewart also argues that we already denied the Government’s request to
stay the mandate in Herrold pending Supreme Court review. He argues that
“there is no more reason to put Stewart’s case on hold than there was
Herrold’s.” He also cites two recent unpublished cases where we remanded for
re-sentencing in light of Herrold. See United States v. Prentice, 721 F. App’x
393, 394 (5th Cir. 2018); United States v. Hernandez-Saenz, No. 16-10084, 2018
WL 2017920, at *5 (5th Cir. Apr. 27, 2018).
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                                 No. 17-50274
      On the question of abeyance, we have traditionally held that even when
the Supreme Court has granted certiorari in a relevant case, we will continue
to follow binding precedent. See Wicker v. McCotter, 798 F.2d 155, 158 (5th
Cir. 1986).   We do not deny, though, that there may be circumstances
suggesting a pause in our application of a decision that is being challenged in
the Supreme Court.       In this appeal, though, Stewart’s relatively brief
remaining time on his sentence compels us to give him the benefit of the law
that currently exists and may continue to exist until his sentence is served.
      We VACATE and REMAND for re-sentencing. The Government’s motion
to hold the appeal in abeyance is DENIED and its motion to remand for re-
sentencing is GRANTED.




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