United States v. Anthony Daniels , 714 F. App'x 413 ( 2018 )


Menu:
  •      Case: 16-10232      Document: 00514377268         Page: 1    Date Filed: 03/07/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 16-10232
    Fifth Circuit
    FILED
    Summary Calendar                        March 7, 2018
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                     Clerk
    Plaintiff-Appellee
    v.
    ANTHONY VERDEAN DANIELS,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:15-CR-185-1
    ON PETITION FOR REHEARING
    Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
    PER CURIAM: *
    The Court grants the petition for panel rehearing, withdraws its
    previous opinion in this matter, United States v. Daniels, 689 F. App’x 376
    (5th Cir. 2017), and substitutes the following opinion.
    Anthony Verdean Daniels appeals his 224-month sentence under the
    Armed Career Criminal Act, 18 U.S.C. § 924(e), for possession of a firearm 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10232     Document: 00514377268     Page: 2   Date Filed: 03/07/2018
    No. 16-10232
    a felon and possession of cocaine with intent to distribute. His appeal rests on
    the assertion that Texas Penal Code § 30.02 is not divisible under Mathis v.
    United States, 
    136 S. Ct. 2243
    (2016). After his brief was filed, we held that
    § 30.02 is divisible under Mathis. United States v. Uribe, 
    838 F.3d 667
    , 669-71
    (5th Cir. 2016), cert. denied, 
    137 S. Ct. 1359
    (2017).
    Relying on Uribe, our original opinion on this appeal affirmed the district
    court’s judgment. Subsequently, on February 20, 2018, this Court, sitting en
    banc, expressly overruled the holding in Uribe. United States v. Herrold, __
    F.3d __, No. 14-11317, 
    2018 WL 948373
    (5th Cir. Feb. 20, 2018).             More
    specifically, we held that the Texas burglary statute was indivisible and that
    it was broader than generic burglary. 
    Id. at *18.
    Thus, the prior conviction
    under the Texas burglary statute did not qualify as a violent felony.          
    Id. Because Daniels’s
    prior conviction was under the same Texas burglary statute,
    we VACATE his sentence and REMAND for resentencing consistent with the
    holding in Herrold.
    2
    

Document Info

Docket Number: 16-10232

Citation Numbers: 714 F. App'x 413

Filed Date: 3/7/2018

Precedential Status: Non-Precedential

Modified Date: 1/13/2023