                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0613n.06

                                          No. 14-5666

                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )
                                                                                  FILED
                                                                             Aug 31, 2015
                                                        )
       Plaintiff-Appellee,                              )                DEBORAH S. HUNT, Clerk
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
ODELL ANDRE HOLDER,                                     )       COURT FOR THE WESTERN
                                                        )       DISTRICT OF TENNESSEE
       Defendant-Appellant.                             )
                                                        )
                                                        )



BEFORE:        SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. This case returns from the Supreme Court on remand for

further consideration in light of Johnson v. United States, 135 S. Ct. 2551 (2015), in which the

Supreme Court held that the Armed Career Criminal Act’s (ACCA) residual clause was void for

vagueness. 135 S. Ct. at 2564. Odell Holder was sentenced as an armed career criminal on

account of his previous convictions for violent felonies. One of Holder’s convictions was for

evading arrest, a crime which qualified as a violent felony only under the ACCA’s now-

invalidated residual clause. Because the district court relied on this conviction as one of the

three convictions necessary to trigger the ACCA’s mandatory minimum sentence, Holder must

be resentenced because he has shown the elements of plain error. Plain error review applies

because Holder did not bring a vagueness challenge against the residual clause in the district

court. See United States v. Milan, 398 F.3d 445, 450–54 (6th Cir. 2005). It is plain that Holder’s
No. 14-5666
United States of America v. Holder

evading arrest conviction is no longer a violent felony under the ACCA. Even though the district

court correctly applied the law at the time of sentencing, “it is enough that an error be ‘plain’ at

the time of appellate consideration.” Johnson v. United States, 520 U.S. 461, 468 (1997). The

erroneous application of the ACCA’s mandatory minimum sentence to Holder affected Holder’s

substantial rights and was an error that seriously affects the fairness, integrity, and public

reputation of judicial proceedings. Accordingly, we vacate Holder’s sentence and remand his

case for resentencing.




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