     Case: 17-10607      Document: 00514837528         Page: 1    Date Filed: 02/15/2019




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

                                                                                 FILED
                                      No. 17-10607                       February 15, 2019
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


              Plaintiff - Appellant

v.

VERNON LEE WHEELER,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-75-1


                         ON PETITION FOR REHEARING
Before KING, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       The petition for panel rehearing filed by the Government is GRANTED,
and the opinion of the court entered on August 1, 2018 (United States v.
Wheeler, 733 F. App’x 221 (5th Cir. 2018) (per curiam)), is VACATED. The
following opinion is substituted in its place.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10607
      Vernon Lee Wheeler pleaded guilty to a charge of felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). During sentencing, the question
arose of whether Wheeler’s four prior convictions under Texas law for
aggravated robbery qualified as “violent felonies” for purposes of the Armed
Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1) (providing a fifteen-year
mandatory minimum sentence). The district court ruled in Wheeler’s favor
and sentenced him to thirty-three months. The Government timely appealed.
      In our original opinion, we relied upon United States v. Burris, 896 F.3d
320 (5th Cir. 2018), which held that simple robbery is not a crime of violence
for purposes of the ACCA.        That conclusion was important because we
concluded that the United States had waived “any argument based on the
divisibility of the Texas aggravated robbery statute, as well as any argument
based on differences between simple and aggravated robbery.” Wheeler, 733 F.
App’x at 222–23. The Burris opinion we relied upon has since been withdrawn.
United States v. Burris, 908 F.3d 152 (5th Cir. 2018) (per curiam).
Additionally, in the intervening time between our original opinion and this
opinion, additional decisions have been issued in other cases that bear upon
the relevant law applicable to the issues here, particularly: Stokeling v. United
States, 139 S. Ct. 544 (2019) and United States v. Reyes-Contreras, 910 F.3d
169 (5th Cir. 2018) (en banc).
      Both sides have had an opportunity to brief these cases. In addition to
arguing the impact of these cases on this case, Wheeler argues that applying
the new decisions retroactively violates due process.
      Having considered the arguments of the parties in light of applicable
law, we conclude that it is best to vacate the sentence in this case and remand
for a full resentencing where the district court will have the opportunity, in the
first instance, to consider the sentence in this case in light of these and any
other new cases, as well as the arguments about whether applying such cases
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                                      No. 17-10607
to Wheeler’s sentence is consistent with due process. See, e.g., United States
v. Darwish, No. 17-60228, 2018 U.S. App. LEXIS 32256, at *8–9 (5th Cir. Nov.
14, 2018) (per curiam); United States v. Hoffman, 901 F.3d 523, 560 (5th Cir.
2018), petition for cert. filed, (Feb. 11, 2019) (No. 18-1049); Luke v. CPlace
Forest Park SNF, L.L.C., 608 F. App'x 246, 246-47 (5th Cir. 2015); Vicknair v.
Formosa, 98 F.3d 837, 838-39 (5th Cir. 1996). Accordingly, the district court’s
sentence 1 is VACATED, and the case is REMANDED for resentencing.




      1   Wheeler did not appeal his conviction, which remains in place.
                                              3
