     Case: 16-11630      Document: 00514757829         Page: 1    Date Filed: 12/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 16-11630
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                    December 12, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


              Plaintiff - Appellee

v.

MATTHEW NAVARRO MONSISVAIS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-280-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Matthew Navarro Monsisvais pleaded guilty to being a felon in
possession of a firearm and for possessing with the intent to distribute
methamphetamine. According to the presentence report (PSR), Monsisvais
had prior convictions for burglary and a conviction for assault family violence
impeding breath/circulation, all in violation of Texas law. The PSR determined



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11630
that Monsisvais’s three prior Texas burglary convictions qualified as violent
felonies under 18 U.S.C. § 924(e)(2)(B) of the Armed Career Criminal Act
(ACCA), resulting in a 15-year statutory-minimum sentence.
      Monsisvais objected, as pertinent to this appeal, on the ground that the
Texas burglary statute, Texas Penal Code Ann. § 30.02, was not divisible and
that a conviction under the statute did not qualify as a “violent felony” for
purposes of the ACCA enhancement. The district court overruled the objection,
adopted the PSR, and imposed the ACCA enhancement, which heightened
Monsisvais’s advisory sentencing guidelines range to 188-235 months in
prison. He was sentenced to 188 months of imprisonment, to be followed by
three years of supervised release.
      On appeal, Monsisvais argues that the district court erred in
determining that his prior Texas burglary convictions implicated the ACCA
sentencing enhancement in light of our decision in United States v. Herrold,
883 F.3d 517, 523, 531, 539 (5th Cir. 2018) (en banc), pets. for cert. filed (April
18, 2018) (No. 17-1445) and (May 21, 2018) (No. 17-9127). This court reviews
Monsisvais’s preserved challenge to his ACCA enhancement de novo. See
United States v. Constante, 544 F.3d 584, 585 (5th Cir. 2008).
      In Herrold, our court held that the burglary provisions proscribed by
Texas Penal Code Ann. § 30.02(a)(1) and (a)(3) set forth offenses broader than
the generic definition of burglary and were therefore not violent felonies under
the ACCA. Herrold, 883 F.3d at 520-37, 541-42. The Government concedes
that Herrold forecloses any assertion that the court properly sentenced
Monsisvais with the ACCA enhancement, but contends that our court wrongly
decided Herrold. Given the foregoing, Monsisvais’s Texas burglary convictions
do not qualify as predicate offenses for the ACCA enhancement imposed by the
district court. See id. at 537. Therefore, we VACATE Monsisvais’s sentence
and REMAND to the district court for resentencing in light of Herrold.
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                                 No. 16-11630
      Monsisvais argues next that the district court erred in applying the
provisions of § 924(e) based on his prior Texas conviction for assault family
violence impeding breath/circulation. Monsisvais’s argument, as he concedes,
is foreclosed by this court’s decision in United States v. Howell, 838 F.3d 489,
501 (5th Cir. 2016).
      VACATED AND REMANDED.




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