     Case: 15-10550      Document: 00513791778         Page: 1    Date Filed: 12/09/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 15-10550                                FILED
                                                                           December 9, 2016
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

              Plaintiff - Appellee

v.

DRAYON CONLEY,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:15-CR-4-1




 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       The Supreme Court granted Drayon Conley’s petition for writ of
certiorari, vacated this court’s judgment, and remanded the case for further
consideration in light of Mathis v. United States, 136 S. Ct. 2243 (2016). Conley
v. United States, 137 S. Ct. 153 (2016) (mem.). On remand, we requested letter


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-10550    Document: 00513791778     Page: 2   Date Filed: 12/09/2016



                                 No. 15-10550
briefs from the parties regarding whether, in light of Mathis and United States
v. Hinkle, 832 F.3d 569 (5th Cir. 2016), this court should vacate Conley’s
sentence and remand for resentencing because the district court committed
plain error by finding that Conley’s prior conviction under Texas Health &
Safety Code § 481.112(a) constituted a controlled substance offense under
U.S.S.G. § 2K2.1(a)(4)(A). In light of Mathis and Hinkle, Conley’s base offense
level was erroneously assigned because his prior conviction under Texas
Health & Safety Code § 481.112(a) did not constitute a controlled substance
offense, and this error was clear. See United States v. Hornyak, 805 F.3d 196,
199 (5th Cir. 2015) (“That error was plain and obvious, even though precedent
foreclosed it at the time of sentencing, because the error became clear in light
of a decision announced while this case was still on direct appeal.”). The
Government does not contest the third and fourth prongs of plain error review
and does not oppose vacatur of Conley’s sentence and remand for resentencing.
Accordingly, we VACATE Conley’s sentence and REMAND for resentencing.




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