     Case: 09-40302        Document: 00511224443       Page: 1    Date Filed: 09/03/2010




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

                                                   FILED
                                                                         September 3, 2010
                                       No. 09-40302
                                     Summary Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JONATHAN EDWARD HOUSE,

                                                   Defendant-Appellant


                       Appeal from the United States District Court
                            for the Eastern District of Texas
                                  USDC No. 9:08-CV-22
                                 USDC No. 9:04-CR-22-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jonathan Edward House, federal prisoner # 11974-078, appeals the
dismissal of his 28 U.S.C. § 2255 motion challenging his sentence for possession
of a firearm by a convicted felon.1 This court granted House a certificate of
appealability on: (1) whether his appeal waiver barred his challenge to the




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        1
            18 U.S.C. § 922(g)(1).
   Case: 09-40302            Document: 00511224443 Page: 2      Date Filed: 09/03/2010
                                         No. 09-40302

Armed Career Criminal Act (ACCA) enhancement;2 and (2) whether his prior
Texas conviction for engaging in organized criminal activity was a violent felony
under the ACCA. We find for House on both questions.


                                             I.
       A defendant convicted for being a felon in possession of a firearm who has
three prior convictions for violent felonies faces a statutory minimum 15-year
prison term under the ACCA. At his 2005 sentencing hearing, House received
this 15-year minimum.               The statutory maximum without the ACCA
enhancement would have been 10 years.3 House argues that one of his three
prior convictions counted by the district court—engaging in organized criminal
activity—is not a violent felony under the ACCA. According to House, his
underlying organized criminal activity was a “burglary” crime, but it was not a
“generic” burglary offense, something the Supreme Court requires for the
conviction to fall under the ACCA.4 House urges that nothing shows—and the
offense does not require—that he had the requisite intent to commit a theft at
the “moment” of his illegal entry.5 House would get around his appeal waiver by
showing his claim falls within its exception allowing him to challenge a sentence
that exceeds the statutory maximum.               Although the Government opposed
House’s § 2255 motion in the district court, it has changed course here—
conceding error and joining House’s request for resentencing within the proper
statutory maximum.




       2
           18 U.S.C. § 924(e).
       3
           18 U.S.C. § 924(a)(2).
      4
        See United States v. Constante, 544 F.3d 584, 585 (5th Cir. 2008) (citing Taylor v.
United States, 495 U.S. 575, 598 (1990)).
       5
           See id. at 587.

                                             2
   Case: 09-40302         Document: 00511224443 Page: 3           Date Filed: 09/03/2010
                                      No. 09-40302

                                              II.
                                              A.
       House’s challenge to the ACCA enhancement is a claim that his sentence
exceeds the proper statutory maximum because his sentence, with the ACCA
enhancement, exceeds the statutory maximum sentence applicable without the
enhancement. We agree it falls within the exception to House’s appeal waiver.6
                                              B.
       The Supreme Court held in Shepard v. United States “that enquiry under
the ACCA to determine whether a plea of guilty to burglary . . . necessarily
admitted elements of the generic offense is limited to the terms of the charging
document, the terms of a plea agreement or transcript of colloquy between judge
and defendant in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this information.” 7 The
Shepard documents introduced here do not show that House’s prior burglary
conviction for engaging in organized criminal activity included “an element of
intent to commit a felony, theft, or assault at the moment of entry,” so the
conviction was not for “generic” burglary and cannot qualify as a violent felony
conviction under the ACCA.8 The government concedes as much.


                                             III.
       The judgment of the district court is VACATED, and House’s case is
REMANDED with instructions to grant § 2255 relief and to resentence him
within the statutory maximum.

       6
          See United States v. Harris, 434 F.3d 767, 770 (5th Cir. 2005) (“If the appeal waiver
read, ‘Defendant reserves the right to appeal a sentence in excess of the statutory maximum,’
we would not construe that waiver to mean that we are barred from considering whether the
district court applied the correct statute in order to determine if the sentence the defendant
received exceeded the applicable statutory maximum.”).
       7
           544 U.S. 13, 26 (2005).
       8
           See Constante, 544 F.3d at 587.

                                              3
