          Case: 14-14664   Date Filed: 04/19/2016     Page: 1 of 3




                                                           [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-14664
                     ________________________

                 D.C. Docket No. 1:14-cr-20265-JEM-1



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

versus

JAMES BONNY GEFFRARD,

                                               Defendant - Appellant.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                            (April 19, 2016)
                Case: 14-14664       Date Filed: 04/19/2016       Page: 2 of 3


Before MARCUS, DUBINA, and MELLOY, * Circuit Judges.

PER CURIAM:

       James Geffrard was sentenced to 204 months’ imprisonment -- the

mandatory minimum sentence required by the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e)(1), and 18 U.S.C. § 1028A(b) -- after pleading

guilty to two counts of possession of a firearm by a convicted felon in violation of

18 U.S.C. §§ 922(g)(1) and 924(e)(1); three counts of aggravated identity theft in

violation of 18 U.S.C. § 1028A(a)(1); and one count of possession of 15 or more

unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3). The district

court sentenced Geffrard under ACCA after finding that he had three qualifying

prior convictions, one of which -- fleeing or eluding a law enforcement officer in

violation of Fla. Stat. § 316.1935(1) -- qualified as a violent felony under the

residual clause of ACCA.

       Geffrard has appealed his sentence, arguing, in part, that his conviction for

fleeing or eluding a law enforcement officer should not qualify as a violent felony

under ACCA because ACCA’s residual clause is unconstitutionally vague.

Subsequent to this appeal being filed, the Supreme Court issued its decision in

Johnson v. United States, 135 S. Ct. 2551 (2015), striking down the residual clause

as void for vagueness. The government now concedes, as it must, that the residual

*
 Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
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clause of ACCA is unconstitutional, and that Geffrard’s conviction for fleeing or

eluding a law enforcement officer can no longer support an ACCA sentencing

enhancement.

      Thus, we conclude that the district court erred in sentencing Geffrard based

on his previous conviction for fleeing or eluding a law enforcement officer under

the now-unconstitutional residual clause of ACCA. Geffrard must be resentenced

without reference to the residual clause. We leave it to the district court on remand

to determine in the first instance: (1) whether to consider a burglary conviction

listed in Geffrard’s Presentence Investigation Report, when the government did not

argue that the court should consider that conviction at Geffrard’s original

sentencing; and (2) if the district court does consider the burglary conviction,

whether that conviction qualifies as a violent felony under ACCA’s elements or

enumerated crimes clauses. 18 U.S.C. § 924(e)(2)(B).

      VACATED AND REMANDED.




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