     Case: 14-11097      Document: 00513325182         Page: 1    Date Filed: 12/30/2015




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

                                    No. 14-11097
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                         December 30, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

MICHAEL NERIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:12-CR-388


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Michael Neria was indicted for being a felon in possession of a firearm.
He filed a motion to suppress his statements and all evidence resulting from
an investigatory stop. The district court held a hearing and denied the motion
to suppress. The district court found that the police officers had probable cause
to conduct an investigatory stop because Neria’s vehicle was parked illegally.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-11097

Following a bench trial, the district court found him guilty of being a felon in
possession of a firearm.
      Because Neria was convicted under 18 U.S.C. § 922(g) and the district
court found that Neria had at least three prior violent felony convictions, he
was subject to an enhanced sentence under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e). The advisory guidelines range for Neria without
consideration of any statutory minimums or maximums would have been 151
to 188 months.       However, because of the ACCA’s mandatory minimum
sentence, the range became 180 to 188 months. The district court commented:
“I am not certain that this would be the same sentence [if the guidelines were
different].” Without the ACCA enhancement, the statutory maximum would
have been 120 months which would result in a guidelines range of 120 months.
The district court sentenced Neria to 180 months of imprisonment and two
years of supervised release.
      Neria argues that the district court erred by denying the suppression
motion. He asserts that the district court erred by concluding that a parking
violation was the equivalent of a traffic violation in justifying an investigatory
stop. In an unpublished case, United States v. Lancaster, No. 95-10017, 1995
WL 696858, 1, 3 (5th Cir. Oct. 27, 1995) (unpublished), we held that a parking
violation allowed an officer to investigate in the same manner as a moving
violation. Because it was issued prior to January 1, 1996, Lancaster has
precedential value. See 5TH CIR. R. 47.5.3. Therefore, Neria has not shown
that the district court erred in denying his motion to suppress. See United
States v. Garcia, 604 F.3d 186, 190 (5th Cir. 2010).
      Neria argues that the district court erred in imposing the ACCA
enhancement. The third Texas conviction used to apply the ACCA to Neria
was for evading arrest or detention using a motor vehicle. We have held that



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                                     No. 14-11097

the Texas offense of evading arrest using a vehicle is a violent felony under the
residual clause of the ACCA. See United States v. Spann, 562 F. App’x 237,
238 (5th Cir.), cert. denied, 135 S. Ct. 220 (2014). In Johnson v. United States,
135 S. Ct. 2551, 2555 (2015), the Supreme Court held “that imposing an
increased sentence under the residual clause of the [ACCA] violates the
Constitution’s guarantee of due process.” Id. at 2563.
       Neria did not object to the application of the ACCA on due process
grounds in the district court, 1 so his challenge to the application of the ACCA
raised on appeal (by supplemental briefing) is reviewed for plain error. See
United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). We
conclude that the district court committed error that was plain because
Johnson makes the error plain, and it is sufficient for plain error purposes if
the error is plain at the time of appeal. Henderson v. United States, 133 S. Ct.
1121, 1130-31 (2013). We note that the Government concedes that Neria was
not subject to the ACCA following Johnson because his conviction for evading
arrest using a motor vehicle did not qualify as a violent felony and that Neria’s
sentence should be vacated and remanded for resentencing.
      Turning to the third prong of plain error review, we must determine if
the error affected Neria’s substantial rights. United States v. Escalante-Reyes,
689 F.3d 415, 425 (5th Cir. 2012) (en banc). Given that the district court
assessed a punishment at the bottom of the incorrectly-determined guidelines
range and which is five years higher than the statutory maximum would be
without the erroneous application of the ACCA, we conclude that the error
affected Neria’s substantial rights. We then turn to the final prong of the plain
error test: we have discretion to correct the error if it affects “the fairness,



      1   He did object to application of the ACCA on other grounds, which we do not reach,
given our disposition here.


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                                 No. 14-11097

integrity, or public reputation of the judicial proceedings.”      Id. (internal
citation and quotation marks omitted). Regarding whether we should exercise
our discretion to grant relief under the strict requirements of the fourth prong,
it is significant that the government, in a supplemental letter addressing
Johnson sent at the request of this court, takes the position that the sentence
"cannot stand even on plain-error review" and that "the government recognizes
that remand for resentencing is appropriate." Although we are not bound by a
governmental concession of reversible plain error, United States v. Castaneda,
740 F.3d 169, 171 (5th Cir. 2013) (per curiam), we are willing, under the
circumstances presented here, to exercise our discretion in light of the
government's position. We make no comment on whether, absent that, we
would have exercised that discretion
      Neria’s conviction is AFFIRMED, his sentence is VACATED, and the
case is REMANDED for resentencing in conformity with Johnson.




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