            Case: 15-11504   Date Filed: 01/05/2016   Page: 1 of 3


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11504
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 3:14-cr-00083-RV-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                     versus

ANTONIO DWAYNE CUMMINGS,
a.k.a. Antonio Dewayne Cummings,

                                                          Defendant-Appellant.

                       ________________________

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

                             (January 5, 2016)

Before ED CARNES, Chief Judge, JORDAN, and JULIE CARNES, Circuit
Judges.

PER CURIAM:
               Case: 15-11504     Date Filed: 01/05/2016    Page: 2 of 3


      Antonio Cummings appeals his 180-month sentence, imposed after pleading

guilty to one count of violating 18 U.S.C. §§ 922(g)(1) and 924(e)(1) by

possessing a firearm as a convicted felon. The district court found that his prior

conviction for escape, in violation of Fla. Stat. § 944.40, qualified as a violent

felony under the Armed Career Criminal Act’s residual clause, 18 U.S.C.

§ 924(e)(2)(B)(ii). Cummings objected, arguing that the residual clause was

unconstitutionally vague. The court overruled that objection and sentenced him as

a career criminal based on that conviction and two other prior convictions. This is

his appeal.

      The Supreme Court invalidated the residual clause as unconstitutionally

vague in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, 2556–57, 2563

(2015). Because of Johnson, Cummings’ escape conviction can serve as a

predicate offense only if it qualifies as a violent felony under a different ACCA

provision. It does not. The government agrees that Fla. Stat. § 944.40 does not

have “as an element the use, attempted use, or threatened use of physical force

against the person of another,” is not “burglary, arson, or extortion,” and does not

involve the “use of explosives.” 18 U.S.C. § 924(e)(2)(B)(i)–(ii). The ACCA

applies only if the defendant has three qualifying offenses, 18 U.S.C. § 924(e)(1),




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                Case: 15-11504        Date Filed: 01/05/2016       Page: 3 of 3


and Cummings is one offense short of that requirement. For that reason, we vacate

his sentence and remand for re-sentencing.1

       VACATED AND REMANDED.




       1
         He also requests that we remand the case so that the district court can consider whether
his two prior drug convictions are qualifying offenses under the ACCA. Because he cannot be
sentenced under the ACCA anyway, that is unnecessary.
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