     Case: 17-10519       Document: 00514686101         Page: 1     Date Filed: 10/17/2018




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

                                     No. 17-10519                            FILED
                                   Summary Calendar                   October 17, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

REGINALD JACKSON,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-139-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Reginald Jackson pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g).             According to the presentence
investigation report (PSR), Jackson had prior convictions for burglary,
possession of cocaine, and evading arrest, all in violation of Texas law. The
PSR determined three prior Texas burglary convictions qualified as “violent




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-10519

felon[ies]” under 18 U.S.C. § 924(e)(2)(B) of the Armed Career Criminal Act
(ACCA), resulting in a 15-year statutory-minimum sentence.
      Jackson objected on the ground he was not subject to the ACCA-
sentencing enhancement because Texas burglary under Texas Penal Code
§ 30.02 did not require a preexisting intent to commit a crime. The district
court overruled the objection, adopted the PSR, and imposed the ACCA
enhancement, which heightened Jackson’s advisory Sentencing Guidelines
range to 180 to 188-months’ imprisonment. He was sentenced to, inter alia,
180-months’ imprisonment.
      Jackson asserts the court erred in determining his prior Texas burglary
convictions implicated the ACCA-sentencing enhancement. Although post-
Booker, the Guidelines are advisory only, the district court must avoid
significant procedural error, such as improperly calculating the Guidelines
sentencing range. Gall v. United States, 552 U.S. 38, 48–51 (2007). If no such
procedural error exists, a properly preserved objection to an ultimate sentence
is reviewed for substantive reasonableness under an abuse-of-discretion
standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 750, 751–53
(5th Cir. 2009). In that respect, for issues preserved in district court, its
application of the Guidelines is reviewed de novo; its factual findings, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th
Cir. 2008).
      In United States v. Herrold, our court held that, for the purposes of an
ACCA-sentencing enhancement, the Texas burglary statute is not divisible
and is broader than generic burglary because it, inter alia, allows for conviction
based on an entry without a preexisting intent to commit a further crime. 883
F.3d 517, 523, 531, 539 (5th Cir. 2018) (en banc), pets. for cert. filed (18 April
2018) (No. 17-1445) and (21 May 2018) (No. 17-9127).           The Government



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                                  No. 17-10519

concedes Herrold “mandates reversal” and forecloses any assertion that the
court properly sentenced Jackson with the ACCA enhancement, but contends
our court wrongly decided Herrold in order to preserve its challenge for further
appellate review. Accordingly, Jackson’s Texas burglary convictions do not
qualify as predicate offenses for the ACCA-sentencing enhancement imposed
by the district court. See id. at 537.
      Therefore,   Jackson’s    sentence     is   VACATED     and   this   case   is
REMANDED to district court for resentencing in the light of Herrold.
      VACATED AND REMANDED.




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