                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0533n.06

                                              No. 14-4190

                           UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                      FILED
                                                                                     Jul 29, 2015
                                                                                DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )       ON APPEAL FROM THE
                                                      )       UNITED STATES DISTRICT
v.                                                    )       COURT FOR THE NORTHERN
                                                      )       DISTRICT OF OHIO
YAHYA BILAL,                                          )
                                                      )                OPINION
       Defendant-Appellant.                           )

                                          /

BEFORE: SUHRHEINRICH and GRIFFIN, Circuit Judges; STAFFORD, District Judge.*

       STAFFORD, District Judge. Yahya Bilal appeals the sentence imposed by the district

court following his guilty plea to two counts of being a felon in possession of a firearm in violation

of 18 U.S.C. § 922(g)(1). Bilal was sentenced to a mandatory minimum sentence of fifteen years

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). Bilal contends that

the district court improperly counted    as one of three violent felonies under the ACCA      a 1995

Ohio conviction for attempted aggravated robbery with firearm specification and, therefore, erred

in sentencing him as an armed career offender.

       The ACCA imposes a mandatory minimum sentence of fifteen years’ imprisonment upon

any individual who violates § 922(g)(1) and has three previous convictions for a “violent felony.”




       *
       The Honorable William H. Stafford, Jr., Senior United States District Judge for the
Northern District of Florida, sitting by designation.
No. 14-4190, United States v. Bilal

18 U.S.C. § 924(e)(1). “Violent felony” is defined in the ACCA as

       any crime punishable by imprisonment for a term exceeding one year . . . that

               (I) has as an element the use, attempted use, or threatened use of
               physical force against the person of another; or

               (ii) is burglary, arson, or extortion, involves use of explosives, or
               otherwise involves conduct that presents a serious potential risk of
               physical injury to another.

Id. § 924(e)(2)(B) (emphasis added). The language italicized above is known as the ACCA’s

residual clause.

       Bilal’s 1995 offense did not include “as an element the use, attempted use, or threatened use

of physical force against the person of another” and so could not qualify as a “violent felony” under

§ 924(e)(2)(B)(I). It was also not one of the enumerated crimes listed in § 924(e)(2)(B)(ii), namely

burglary, arson, extortion, or a crime involving the use of explosives. Consequently, to qualify as

a “violent felony” under the ACCA, Bilal’s 1995 conviction for attempted aggravated robbery had

to do so under the ACCA’s residual clause.

       In Johnson v. United States, No. 13 7120, 2015 WL 2473450 (June 26, 2015), the Supreme

Court held that the ACCA’s residual clause violates the Constitution’s guarantee of due process

because it is unconstitutionally vague. Id. at *11. We are required to apply Johnson to Bilal’s case.

See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding that “a new rule for the conduct of

criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct

review or not yet final”). Under Johnson, Bilal’s 1995 conviction does not qualify as a predicate

offense under the ACCA. We accordingly VACATE Bilal’s sentence and REMAND the case to the

district court for resentencing in light of Johnson.

                                                  -2-
