UNITED STATES v. WHEELER (2019)

ON PETITION FOR REHEARING

The petition for panel rehearing filed by the Government is GRANTED, and the opinion of the court entered on August 1, 2018 (United States v. Wheeler, 733 F. App'x 221 (5th Cir. 2018) (per curiam) ), is VACATED. The following opinion is substituted in its place.

Vernon Lee Wheeler pleaded guilty to a charge of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). During sentencing, the question arose of whether Wheeler’s four prior convictions under Texas law for aggravated robbery qualified as “violent felonies” for purposes of the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1) (providing a fifteen-year mandatory minimum sentence). The district court ruled in Wheeler’s favor and sentenced him to thirty-three months. The Government timely appealed.

In our original opinion, we relied upon United States v. Burris, 896 F.3d 320 (5th Cir. 2018), which held that simple robbery is not a crime of violence for purposes of the ACCA. That conclusion was important because we concluded that the United States had waived “any argument based on the divisibility of the Texas aggravated robbery statute, as well as any argument based on differences between simple and aggravated robbery.” Wheeler, 733 F. App'x at 222–23. The Burris opinion we relied upon has since been withdrawn. United States v. Burris, 908 F.3d 152 (5th Cir. 2018) (per curiam). Additionally, in the intervening time between our original opinion and this opinion, additional decisions have been issued in other cases that bear upon the relevant law applicable to the issues here, particularly: Stokeling v. United States, ––– U.S. ––––, 139 S.Ct. 544, ––– L.Ed.2d –––– (2019) and United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc).

Both sides have had an opportunity to brief these cases. In addition to arguing the impact of these cases on this case, Wheeler argues that applying the new decisions retroactively violates due process.

Having considered the arguments of the parties in light of applicable law, we conclude that it is best to vacate the sentence in this case and remand for a full resentencing where the district court will have the opportunity, in the first instance, to consider the sentence in this case in light of these and any other new cases, as well as the arguments about whether applying such cases to Wheeler’s sentence is consistent with due process. See, e.g., United States v. Darwish, ––– Fed.Appx. ––––, 2018 WL 5992880 (5th Cir. 2018) (per curiam); United States v. Hoffman, 901 F.3d 523, 560 (5th Cir. 2018), petition for cert. filed, (Feb. 11, 2019) (No. 18-1049); Luke v. CPlace Forest Park SNF, L.L.C., 608 F. App'x 246, 246-47 (5th Cir. 2015); Vicknair v. Formosa Plastics Corp., 98 F.3d 837, 838-39 (5th Cir. 1996). Accordingly, the district court’s sentence ¹ is VACATED, and the case is REMANDED for resentencing.

FOOTNOTES

FOOTNOTE.  

1.   Wheeler did not appeal his conviction, which remains in place.

PER CURIAM: * FN* 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.