     Case: 16-10355      Document: 00514547851         Page: 1    Date Filed: 07/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-10355
                                                                                  Fifth Circuit


                                  Summary Calendar
                                                                                FILED
                                                                            July 10, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

GROVER CLENDON ELROD,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-233-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Grover Clendon Elrod appeals the 180-month, mandatory-minimum
sentence imposed pursuant to the Armed Career Criminal Act (ACCA)
following his conviction for being a felon in possession of a firearm.                          See
18 U.S.C. §§ 922(g) and 924(e)(1).          Relying upon Mathis v. United States,
136 S. Ct. 2243, 2247-57 (2016), he argues that the district court erred by




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-10355      Document: 00514547851      Page: 2    Date Filed: 07/10/2018


                                   No. 16-10355

holding that his prior convictions under Texas Penal Code § 30.02(a) constitute
violent felonies. See § 924(e)(2)(B)(ii).
      Even if Elrod’s argument was not adequately raised in the district court,
the sentence imposed constitutes plain error for the following reasons.
See Puckett v. United States, 556 U.S. 129, 135 (2009). To demonstrate plain
error, Elrod must show a forfeited error that is clear or obvious and that affects
his substantial rights. See id. If he makes such a showing, we have the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
      The imposition of Elrod’s ACCA sentence on the ground that his three
§ 30.02(a) convictions constitute violent felonies under § 924(e)(2)(B)(ii) is
clearly erroneous. See United States v. Herrold, 883 F.3d 517, 536-37, 541
(5th Cir.) (en banc), petition for cert. filed (Apr. 18, 2018) (No. 17-1445); see also
Johnson v. United States, 520 U.S. 461, 468 (1997) (“[W]here the law at the
time of trial was settled and clearly contrary to the law at the time of appeal[,]
it is enough that an error be ‘plain’ at the time of appellate consideration.”). As
the presentence report recommended a guidelines range of 37-46 months of
imprisonment, and because Elrod is subject to a statutory maximum sentence
of only 10 years absent the ACCA enhancement, the error affects his
substantial rights. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1345
(2016). Since the error at issue resulted in a higher guidelines range, and as
this case does not present any countervailing factors, we will exercise our
discretion to correct the error. See Rosales-Mireles v. United States, No. 16–
9493, 2018 WL 3013806, at *9, *12 (June 18, 2018).
      VACATED and REMANDED.




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