     Case: 14-10441   Document: 00513241052        Page: 1   Date Filed: 10/21/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-10441                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          October 21, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

MARIO MUNOZ-NAVARRO,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Mario Munoz-Navarro pled guilty to possession of a firearm by a
prohibited person, in violation of 18 U.S.C. § 922(g)(1). His presentence report,
prepared by a probation officer, recommended that he was subject to an
enhanced sentence of fifteen years to life imprisonment under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). Munoz-Novarro objected
to the enhanced sentence on several grounds; among them was an argument—
foreclosed by Supreme Court case law at the time—that ACCA is
unconstitutionally vague. The district court overruled that objection, and his
others, and sentenced him, under ACCA, to the mandatory-minimum sentence
of 180 months of imprisonment and two years of supervised release. Munoz-
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                                  No. 14-10441
Navarro timely appealed. We vacate and remand for resentencing in light of
the Supreme Court's intervening decision in Johnson v. United States, 135 S.
Ct. 2551 (2015).
      ACCA authorizes enhanced penalties for defendants who have three or
more prior convictions for “violent felonies” committed on different occasions.
18 U.S.C. § 924(e)(1). The Act defines “violent felonies” to include three
categories of offenses. First, violent felonies include all “offense[s] that ha[ve]
as an element the use, attempted use, or threatened use of physical force
against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Second, violent
felonies include four enumerated offenses: burglary, arson, extortion, and
offenses “involv[ing] use of explosives.” Id. § 924(e)(2)(B)(ii). Finally, violent
felonies include offenses “otherwise involv[ing] conduct that presents a serious
potential risk of physical injury to another.” Id. This last category is known as
the “residual clause.” Johnson, 135 S. Ct. at 2556.
      After briefing and oral argument were complete in this appeal, the
Supreme Court issued Johnson, holding that the residual clause is
unconstitutionally vague. 135 S. Ct. at 2557. Munoz-Novarro’s case is before
us on direct review, so Johnson applies, see Griffith v. Kentucky, 479 U.S. 314,
328 (1987), and decides this appeal. Munoz-Novarro’s presentence report
identified five potential ACCA predicate offenses: burglary of a habitation,
attempted burglary of a habitation, evading arrest with a vehicle, attempted
escape, and evading arrest without a vehicle. The government does not dispute
that four of the five potential predicates—all but the completed burglary
offense—could qualify as violent felonies only under the residual clause. After
Johnson, therefore, Munoz-Novarro does not qualify for an enhanced penalty
under ACCA.
      Although Munoz-Novarro’s plea agreement included a waiver of his right
to appeal his sentence, the government has elected not to rely on appeal
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                                No. 14-10441
waivers in ACCA cases in which “the defendant is, post Johnson, ineligible for
the 15-year minimum sentence created by the [Act].” Consistent with that
policy, the government no longer relies on Munoz-Novarro’s appeal waiver
here.
        We vacate the sentence imposed by the district court and remand for
resentencing.




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