           Case: 14-12921   Date Filed: 12/03/2015   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12921
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:12-cr-00490-EAK-TGW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                versus

MARTEZ COOK,
a.k.a. Cuda,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (December 3, 2015)

Before ED CARNES, Chief Judge, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:
               Case: 14-12921     Date Filed: 12/03/2015    Page: 2 of 3


      Martez Cook appeals his 180-month sentence for being a convicted felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e). The

district court found that Cook’s prior conviction for fleeing and eluding a police

officer, in violation of Fla. Stat. § 316.1935, qualified as a violent felony under the

Armed Career Criminal Act’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). Cook

objected, arguing that the residual clause was unconstitutionally vague. The court

overruled that objection and sentenced him as a career criminal based on that

conviction and two other uncontested prior convictions. This is his appeal.

      In 2015, while Cook’s appeal was pending, the Supreme Court invalidated

the residual clause as unconstitutionally vague in Johnson v. United States, 576

U.S. ___, 135 S. Ct. 2551, 2556–57, 2563 (2015). Because of Johnson, Cook’s

fleeing and eluding conviction can serve as a predicate offense only if it qualifies

as a violent felony under a different ACCA provision. It does not. The

government agrees that Fla. Stat. § 316.1935(1)–(2) does not have “as an element

the use, attempted use, or threatened use of physical force against the person of

another,” is not “burglary, arson, or extortion,” and does not involve the “use of

explosives.” 18 U.S.C. § 924(e)(2)(B)(i)–(ii). Because the ACCA applies only if

the defendant has three qualifying offenses, 18 U.S.C. § 924(e)(1), Cook is one




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offense short of that requirement. For that reason, we vacate his sentence and

remand for re-sentencing.1

       VACATED AND REMANDED.




       1
         He also contends that his mandatory minimum sentence under the ACCA is
unconstitutional in light of 18 U.S.C. § 3553(a). Because the ACCA does not apply, we need not
consider that contention.

                                              3
