               Case: 14-15725        Date Filed: 01/11/2017      Page: 1 of 17


                                                                                   [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 14-15725
                               ________________________

                      D.C. Docket No. 2:14-cr-00083-SPC-DNF-1



UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

JOSE GABRIEL GARCIA-MARTINEZ,

                                                                       Defendant-Appellant.

                               ________________________

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

                                     (January 11, 2017)

Before ED CARNES, Chief Judge, ANDERSON, Circuit Judge, and
ROSENBERG, * District Judge.

ED CARNES, Chief Judge:


       *
          Honorable Robin L. Rosenberg, United States District Judge for the Southern District of
Florida, sitting by designation.
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       Jose Gabriel Garcia-Martinez pleaded guilty to illegal reentry after

deportation in violation of 8 U.S.C. § 1326(a), (b)(2) and was sentenced to 36

months imprisonment. He appeals his sentence, contending that the district court

erred by applying a 16-level enhancement under United States Sentencing

Guidelines § 2L1.2(b)(1)(A)(ii) (2014) for reentering the United States after having

been deported for a “crime of violence.” 1 His purported “crime of violence” was a

Florida conviction for second degree burglary of a dwelling.

                                                    I.

       In 2009 Garcia-Martinez, a Mexican citizen who was in the United States

illegally, was convicted in Florida of second degree burglary of a dwelling under

Florida Statute § 810.02(3). Florida defines burglary as “[e]ntering a dwelling, a

structure, or a conveyance with the intent to commit an offense therein . . . or . . .

[n]otwithsanding a licensed or invited entry, remaining in a dwelling, structure, or

conveyance” with the intent to commit an offense or a forcible felony. Fla. Stat.

§ 810.02(1)(b). As relevant to this case, a second degree burglary is one in which:

       in the course of committing the offense, the offender does not make
       an assault or battery and is not and does not become armed with a
       dangerous weapon or explosive, and the offender enters or remains in
       a:


       1
         Garcia-Martinez also contends that his sentence is unconstitutional because the statutory
maximum penalty was increased from 2 years to 20 years based on a conviction not charged in
the indictment. As he concedes, however, that argument is foreclosed by the Supreme Court’s
decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998).
                                                2
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      (a) Dwelling, and there is another person in the dwelling at the time
          the offender enters or remains;

      (b) Dwelling, and there is not another person in the dwelling at the
          time the offender enters or remains . . . .

Id. § 810.02(3)(a)–(b). Florida defines a “dwelling” as “a building or conveyance

of any kind, including any attached porch, whether such building or conveyance is

temporary or permanent, mobile or immobile, which has a roof over it and is

designed to be occupied by people lodging therein at night, together with the

curtilage thereof.” Id. § 810.011(2) (emphasis added).

      After his Florida conviction for second degree burglary of a dwelling,

Garcia-Martinez was removed from the United States in 2010 and ordered not to

enter, attempt to enter, or be in the United States for the rest of his life. Despite his

removal, on June 16, 2014 immigration agents found Garcia-Martinez in a Florida

jail after he had been arrested for battery. He was charged with and pleaded guilty

to illegal reentry after deportation.

      The presentence investigation report, using the 2014 version of the United

States Sentencing Guidelines (which is also the version that we use in this appeal),

assigned a base offense level of 8 under § 2L1.2(a), a 16-level increase under

§ 2L1.2(b)(1)(A)(ii), and a 3-level reduction for acceptance of responsibility,

yielding a total offense level of 21. The PSR explained that the 16-level increase

under § 2L1.2(b)(1)(A)(ii) was warranted because Garcia-Martinez’s Florida


                                            3
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conviction for second degree burglary of a dwelling counted as a crime of

violence.

       The district court, over Garcia-Martinez’s objection, concluded that based on

the facts described in the PSR, Garcia-Martinez’s charging document, and his state

court judgment, Garcia-Martinez’s conviction counted as a crime of violence under

§ 2L1.2. The court adopted the PSR without change, meaning that Garcia-

Martinez faced an advisory guidelines range of 41 to 51 months imprisonment, but

the court varied downward and imposed a sentence of 36 months imprisonment.

                                                 II.

       We review de novo whether a defendant’s prior conviction is for a “crime of

violence” under § 2L1.2(b)(1)(A)(ii). United States v. Estrada, 777 F.3d 1318,

1321 (11th Cir. 2015). Section 2L1.2(b)(1)(A)(ii) states that the court must

increase the defendant’s offense level by 16 levels “[i]f the defendant previously

was deported . . . after . . . a conviction for a felony that is . . . a crime of violence.”

       The commentary to § 2L1.2 defines a “crime of violence” as:

       [A]ny of the following offenses under federal, state, or local law:
       murder, manslaughter, kidnapping, aggravated assault, forcible sex
       offenses . . . , statutory rape, sexual abuse of a minor, robbery, arson,
       extortion, extortionate extension of credit, burglary of a dwelling, or
       any other offense under federal, state, or local law that has as an
       element the use, attempted use, or threatened use of physical force
       against the person of another.




                                             4
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U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added). “[A] felony conviction

qualifies as a crime of violence under § 2L1.2 if either (1) the defendant was

convicted of one of the enumerated offenses; or (2) the use, attempted use, or

threatened use of physical force was an element of the offense.” United States v.

Palomino Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010). We refer to the first part

of the definition as the enumerated offenses clause and the second part as the

elements clause. Because it is clear that Florida second degree burglary of a

dwelling does not count under § 2L1.2’s elements clause, see Fla. Stat.

§ 810.02(3), the decisive question is whether it counts under § 2L1.2’s enumerated

offenses clause. 2

       To answer that question, we use the framework the Supreme Court has set

out for determining whether a conviction under a state or federal statute counts as a

predicate offense for purposes of the Armed Career Criminal Act (ACCA). The

ACCA calls for an enhanced sentence when a defendant has three or more

convictions for crimes that qualify as predicate offenses. 18 U.S.C. § 924(e)(1).

One type of qualifying offense is a “violent felony.” Id. § 924(e)(2)(B)(ii).

Although § 2L1.2 defines a crime of violence for guidelines enhancement purposes

differently from how the ACCA defines a violent felony, we have used the


       2
        Because Garcia-Martinez was convicted of second degree burglary, we do not consider
whether Florida’s first degree burglary statute would count as a crime of violence under
§ 2L1.2’s elements clause.
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framework for determining whether a conviction qualifies under the ACCA to

decide whether one qualifies under § 2L1.2. See, e.g., United States v. Ramirez-

Flores, 743 F.3d 816, 820–21 & n.2 (11th Cir. 2014); United States v. Ramirez-

Garcia, 646 F.3d 778, 782–83 (11th Cir. 2011); United States v. Krawczak, 331

F.3d 1302, 1306 (11th Cir. 2003). We do so again in this case.

      The first step is to determine the generic definition of the enumerated

offense. See Taylor v. United States, 495 U.S. 575, 598–99, 110 S. Ct. 2143, 2158

(1990). Then the court must use the “categorical approach” to compare the statute

under which the defendant was convicted to the generic offense. Id. at 599–602,

110 S. Ct. at 2158–60. In doing that a court may look at only the elements of the

statute of conviction and not at the underlying facts of the offense. Id.; cf. United

States v. Gundy, 842 F.3d 1156, 1161 (11th Cir. 2016) (“[F]ocusing on the

elements of the statute of conviction is, and always has been, the essential principle

governing ACCA cases.”). If the statute’s elements are the same or narrower than

those in the generic definition, the statutory offense qualifies. Taylor, 495 U.S. at

599, 110 S. Ct. at 2158; Descamps v. United States, 570 U.S. __, 133 S. Ct. 2276,

2283 (2013).

      A conviction cannot categorically qualify as a predicate offense if the

conviction was for violating a statute that is broader than the generic definition of

the enumerated offense. Descamps, 133 S. Ct. at 2283; Gundy, 842 F.3d at 1162.


                                          6
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If that is the situation, the court must decide whether it is appropriate to use what is

called the “modified categorical approach” and look at “a limited class of

documents (for example, the indictment, jury instructions, or plea agreement and

colloquy) to determine what crime, with what elements, a defendant was convicted

of.” Mathis v. United States, 579 U.S. __, 136 S. Ct. 2243, 2249 (2016). It is only

appropriate to use the modified categorical approach if the statute at issue is

“divisible,” or “comprises multiple, alternative versions of the crime.” Descamps,

133 S. Ct. at 2284; accord Mathis, 136 S. Ct. at 2249 (describing a divisible statute

as one that “list[s] elements in the alternative, and thereby define[s] multiple

crimes”). If the statute is “indivisible,” meaning that it “sets out a single (or

‘indivisible’) set of elements to define a single crime . . . . no conviction under that

law could count as [a] . . . predicate.” Mathis, 136 S. Ct. at 2248–49.

                                            A.

      While § 2L1.2 counts “burglary of a dwelling” as a predicate offense,

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii), the ACCA counts “burglary” as a predicate

offense, 18 U.S.C. § 924(e)(2)(B)(ii). In Taylor the Supreme Court held that the

generic definition of burglary, as used in the ACCA, is the “unlawful or

unprivileged entry into, or remaining in, a building or structure, with intent to

commit a crime.” 495 U.S. at 599, 110 S. Ct. at 2158. But that definition is not

the end of our inquiry because, unlike the ACCA, § 2L1.2 specifies that the offense


                                           7
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must be “burglary of a dwelling.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis

added); see United States v. Ramirez, 708 F.3d 295, 301 (1st Cir. 2013) (“We

disagree that Taylor’s strict definition of ‘generic burglary’ automatically dictates

the Guidelines’ definition of ‘burglary of a dwelling.’”); United States v. Rivera-

Oros, 590 F.3d 1123, 1129 (10th Cir. 2009) (“[S]ince the Supreme Court’s

decision in Taylor was based on the ACCA’s language and purpose, we conclude

that Taylor’s definition of generic burglary does not dictate the result in this

case.”); United States v. Murillo-Lopez, 444 F.3d 337, 344–45 (5th Cir. 2006)

(stating that the Supreme Court’s formulation of generic burglary in Taylor is

“instructive” but “does not strictly apply to the specific offense ‘burglary of a

dwelling’ as used in the Guidelines”). 3

       So we face this question: What is the generic definition of a dwelling? In

United States v. Ray, 245 F.3d 1256, 1257 (11th Cir. 2001), we followed the Third

Circuit’s decision in United States v. McClenton, 53 F.3d 584 (3d Cir. 1995), to

hold that a hotel guest room counts as a dwelling under the guidelines. The

McClenton decision relied in part on the definition given in the sixth edition of

       3
         The distinction between burglary under the ACCA and burglary of a dwelling under the
sentencing guidelines is also the reason why our recent decision in United States v. Esprit, 841
F.3d 1235 (11th Cir. 2016), does not resolve this appeal. In Esprit we held that “Florida’s
burglary statute creates a single indivisible crime that includes non-generic burglary,” meaning
that “no conviction under Florida’s burglary statute . . . can serve as an ACCA predicate
offense.” Id. at 1241. But the question in this case is whether a conviction for burglary of a
dwelling under Florida law can serve as a § 2L1.2 crime of violence, which is defined differently
from violent felony in the ACCA.


                                                8
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Black’s Law Dictionary. McClenton, 53 F.3d at 587. That definition of dwelling

is “a building or portion thereof, a tent, a mobile home, a vehicle or other enclosed

space which is used or intended for use as a human habitation, home or residence.”

Dwelling, Black’s Law Dictionary (6th ed. 1990). Our circuit and the Third are

not the only two to have used that definition. The First, Fifth, Sixth, Eighth, and

Tenth Circuits have also used it, or a substantially similar definition from a later

edition of Black’s Law Dictionary. 4 Ramirez, 708 F.3d at 303; United States v.

McFalls, 592 F.3d 707, 712–14 (6th Cir. 2010); Rivera-Oros, 590 F.3d at 1131–32;

Murillo-Lopez, 444 F.3d at 345; United States v. Graham, 982 F.2d 315, 316 (8th

Cir. 1992).

       Using the Black’s Law Dictionary definition of dwelling, generic burglary of

a dwelling under § 2L1.2 is both narrower and broader than generic burglary under

the ACCA. It is narrower because a conviction for burglary of a building or

structure like a store, which would qualify as a violent felony under the ACCA,

would not qualify as a crime of violence under § 2L1.2 because a store is not a


       4
           For example, the tenth edition defines a “dwelling-house” as used in criminal law as:

       [a] building, a part of a building, a tent, a mobile home, or another enclosed space
       that is used or intended for use as a human habitation. The term has referred to
       connected buildings in the same curtilage but now typically includes only the
       structures connected either directly with the house or by an enclosed passageway.
       Often shortened to dwelling.

Dwelling-house, Black’s Law Dictionary (10th ed. 2014); see also Rivera-Oros, 590 F.3d at
1131–32 (discussing the ninth edition definition).
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dwelling. At the same time, it is broader because a conviction for burglary of

something like a houseboat, which would not count as a violent felony under the

ACCA because a vessel is not a “building or structure,” see Taylor, 495 U.S. at

599, 110 S. Ct. at 2158–59, would count as a crime of violence under § 2L1.2 since

a houseboat is an “enclosed space which is used or intended for use as a human

habitation, home or residence.”

      The Ninth Circuit has rejected the Black’s Law Dictionary definition of

dwelling for guidelines purposes. United States v. Wenner, 351 F.3d 969, 973 (9th

Cir. 2003). Instead, it has held that burglary of a dwelling under the guidelines

should be defined using “the Taylor definition of burglary, with the narrowing

qualification that the burglary occur in a dwelling,” id., which “must involve a

building or other structure,” id. at 972 (quotation marks omitted). But Taylor was,

of course, an ACCA case, not a guidelines case. The Fourth Circuit has also

construed burglary of a dwelling under the guidelines to mean generic burglary, as

defined in Taylor, “with the additional requirement that a burglary qualifying as a

‘crime of violence’ must involve a dwelling.” United States v. Bonilla, 687 F.3d

188, 190 n.3 (4th Cir. 2012). Under the Fourth Circuit’s definition, a dwelling

cannot be a “boat, motor vehicle, or other enclosure that is excluded from the

definition of generic burglary.” United States v. Henriquez, 757 F.3d 144, 147

(4th Cir. 2014).


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      We are not convinced by the Fourth and Ninth Circuit’s reasoning. Instead,

we find the reasoning of the Third and Tenth Circuits more persuasive. The Tenth

Circuit in its Rivera-Oros decision pointed out that the Sentencing Commission

chose to make burglary of a dwelling a crime of violence because of its

“heightened concern for the harms associated with residential burglaries,” 590 F.3d

at 1132, because “residential burglaries pose an increased risk of physical and

psychological injury,” id. at 1130 (quotation marks omitted). As that court

explained, “burglary [of a residence] is . . . ‘a forcible invasion and disturbance of

that right of habitation, which every individual might acquire even in a state of

nature.’” Id. (quoting 4 William Blackstone, Commentaries *223); see also id.

(“[T]he unique wounds caused by residential burglary are independent of the size

or construction of the dwelling. They are the same for the mansion house and the

boarding house, the tract home and the mobile home.”). And, as the Third Circuit

pointed out in McClenton, with burglary of a dwelling “there is a much greater

possibility of confronting the resident and a substantial risk that force will be used

and that someone will be injured, than if one burglarized a building that was not

intended for use as habitation, such as an office building after office hours or a

warehouse.” 53 F.3d at 588.

      That reasoning is true of dwellings, including vessels and conveyances, if

they are used or intended for use for human habitation, as much as it is for


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dwellings like houses. For those reasons, we reject the Fourth and Ninth Circuits’

position in favor of the position of the Third Circuit and the five others that agree

with it. We reiterate more explicitly our earlier decision in Ray: A generic

dwelling is “a building or portion thereof, a tent, a mobile home, a vehicle or other

enclosed space which is used or intended for use as a human habitation, home or

residence.” See 245 F.3d at 1257 (incorporating McClenton, 53 F.3d at 587).

                                                    B.

       With the generic definition of “dwelling” in mind, we apply the categorical

approach to Florida’s statute setting out the elements of second degree burglary of

a dwelling. 5 We have already said in one decision that Florida burglary of an

unoccupied dwelling does not categorically qualify as a crime of violence under a

different guideline’s enumerated offenses clause because Florida includes curtilage

in its definition of dwelling. Matchett, 802 F.3d at 1196–97. The parties disagree

about whether that statement is a holding (meaning we are bound to follow it) or

dicta (meaning we are not bound by it). We need not decide one way or the other,




       5
          We have held that Florida burglary of a dwelling categorically counts as a crime of
violence under the career offender sentencing guideline, U.S.S.G. §§ 4B1.1, 4B1.2. United
States v. Matchett, 802 F.3d 1185, 1197 (11th Cir. 2015); United States v. Davis, 881 F.2d 973,
976 (11th Cir. 1989). But those decisions are not dispositive in this case because they involved
§ 4B1.2, which has a residual clause that covers offenses that would not count under the
enumerated offenses or elements clauses. Compare U.S.S.G. § 4B1.2 cmt. n.1, with id. § 2L1.2
cmt. n.1(B)(iii). Their results were based on that residual clause. Matchett, 802 F.3d at 1197;
Davis, 881 F.2d at 976. Section 2L1.2, by contrast, does not have a residual clause.
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because Florida’s definition of a dwelling makes its burglary of a dwelling offense

broader than the generic definition under § 2L1.2.

      Florida defines a dwelling as:

      [A] building or conveyance of any kind, including any attached porch,
      whether such building or conveyance is temporary or permanent,
      mobile or immobile, which has a roof over it and is designed to be
      occupied by people lodging therein at night, together with the
      curtilage thereof.

Fla. Stat. § 810.011(2) (emphasis added). The Florida Supreme Court has said that

“some form of an enclosure [is required] in order for the area surrounding a

residence to be considered part of the ‘curtilage’ as referred to in the burglary

statute.” State v. Hamilton, 660 So. 2d 1038, 1044 (Fla. 1995).

      The United States Supreme Court has decided that Florida’s definition of

dwelling takes its burglary offense outside the generic definition of burglary under

the ACCA. In James v. United States, 550 U.S. 192, 212, 127 S. Ct. 1586, 1599

(2007), overruled on other grounds by Johnson v. United States, 576 U.S. __, 135

S. Ct. 2551, 2563 (2015), the Court said that “the inclusion of curtilage takes

Florida’s underlying offense of burglary outside the definition of generic burglary

set forth in Taylor, which requires an unlawful entry into, or remaining in, a

building or other structure.” (Emphasis in original). But the James decision was

based on the generic definition of burglary under the ACCA, which requires entry

into or remaining in a building or structure, while generic burglary of a dwelling


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under § 2L1.2 requires only entry into or remaining in a dwelling, which can

include non-buildings and non-structures.

      Although we conclude that the James decision does not bind us in the

guidelines context, we come to the same conclusion it did: Florida’s inclusion of

curtilage in its definition of dwelling makes its burglary of a dwelling offense non-

generic. Curtilage — defined in Florida as an enclosure around a residence — is

not categorically “used or intended for use as a human habitation, home or

residence” because it can include the yard and, as the State acknowledges,

potentially even outbuildings as long as they are located within the enclosure. See

Henry v. State, 707 So. 2d 370, 373 (Fla. 1st DCA 1998) (holding that curtilage of

a structure, which is treated the same as curtilage of a dwelling, includes

outbuildings located within the curtilage).

      We are not the first circuit to reach this conclusion. The First and the Fifth

Circuits have also held that Florida’s definition of dwelling takes its burglary of a

dwelling offense outside the generic definition of burglary of a dwelling. The First

Circuit has explained that “[g]eneric burglary of a dwelling requires the dwelling

be an enclosed space used or designed for human habitation. Under Florida’s

definition of burglary of a dwelling, the building or conveyance must be designed

for lodging at night, but the curtilage does not.” Ramirez, 708 F.3d at 304. It held

that Florida’s inclusion of curtilage in its definition of dwelling makes it broader


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than generic burglary of a dwelling under the guidelines. Id. Similarly, the Fifth

Circuit has reasoned that “[b]ecause the curtilage is the grounds around the

dwelling and is not the dwelling itself, we cannot hold that [the defendant] was

convicted of the enumerated offense of ‘burglary of a dwelling.’” Gomez-Guerra,

485 F.3d at 304.

      We hold that Florida’s inclusion of curtilage in its definition of dwelling

makes its burglary of a dwelling offense non-generic. Garcia-Martinez’s

conviction for second degree burglary of a dwelling is not categorically a crime of

violence under § 2L1.2.

                                         C.

      Because a Florida conviction for second degree burglary of a dwelling is not

categorically a crime of violence, the outcome of this appeal comes down to

whether the district court correctly used the modified categorical approach to

determine if Garcia-Martinez was convicted of generic burglary of a dwelling. The

answer to that question depends on whether the Florida statute defining the crime

of second degree burglary of a dwelling lists alternative elements, making it

divisible, or instead lists “various factual means of committing a single element,”

making it indivisible. Mathis, 136 S. Ct. at 2249.

      The Florida Supreme Court has already answered that question for us. It has

held that “[t]here is no crime denominated burglary of a curtilage; the curtilage is


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not a separate location wherein a burglary can occur. . . . Entry onto the curtilage

is, for the purposes of the burglary statute, entry into the structure or dwelling.”

Baker v. State, 636 So. 2d 1342, 1344 (Fla. 1994). The dwelling and the curtilage

are not alternative elements. Under the Florida statute, entering onto or remaining

in the curtilage of a dwelling is just a different means of committing the crime of

burglary of a dwelling. A jury need not agree whether a defendant entered a

structure or instead entered curtilage surrounding a structure. See id.; Mathis, 136

S. Ct. at 2249. All that a jury must decide, under Florida law, is whether a

defendant entered a dwelling, which is a term that encompasses both structures and

curtilage. See Baker, 636 So. 2d at 1344. Thus, the locational element of Florida

burglary of a dwelling is indivisible. And because that locational element — the

residence plus its curtilage — is broader than the generic definition of a dwelling,

Florida’s second degree burglary of a dwelling offense is non-generic.

      The district court erred in applying the modified categorical approach to find

that Garcia-Martinez’s conviction counted as a crime of violence under § 2L1.2.

We vacate his sentence and remand for resentencing.




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                                                D.

      On remand the district court must calculate Garcia-Martinez’s advisory

guidelines range using the same guidelines that were in effect at his previous

sentencing. See 18 U.S.C. § 3742(g)(1) (stating that where a case is remanded

because the district court incorrectly applied the guidelines, “the court shall apply

the guidelines issued by the Sentencing Commission . . . that were in effect on the

date of the previous sentencing of the defendant prior to the appeal . . . .”); see also

United States v. Bordon, 421 F.3d 1202, 1207 (11th Cir. 2005). We vacate Garcia-

Martinez’s sentence and remand with instructions to resentence him using the 2014

sentencing guidelines.

      VACATED AND REMANDED.




                                           17
