Case: 16-41000      Document: 00514541164         Page: 1    Date Filed: 07/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 16-41000                              July 5, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee Cross-Appellant

v.

GABRIEL VELA,

                                          Defendant-Appellant Cross-Appellee


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:15-CR-429-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Gabriel Vela was convicted of felony possession of firearms and
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and he was
sentenced to 46 months of imprisonment. On appeal, he argues that the
district court erred by increasing his base offense level pursuant to U.S.S.G.
§ 2K2.1(a)(3) based on its finding that his prior Texas burglary convictions
were enumerated offenses constituting crimes of violence. The Government


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41000    Document: 00514541164      Page: 2   Date Filed: 07/05/2018


                                 No. 16-41000

cross-appeals, arguing that the district court erred in failing to treat these
prior burglary offenses as violent felonies for purposes of an enhancement
under the Armed Career Criminal Act (ACCA).
      We recently held in United States v. Herrold, 

(5th Cir. 2018)
(en banc), that the Texas burglary statute, Texas Penal Code § 30.02(a), is
indivisible and broader than generic burglary as enumerated in the ACCA. In
United States v. Godoy, 

, 536 (5th Cir. 2018), we established that
this holding extends to the definition of crime of violence under the Guidelines.
In light of Herrold and Godoy, the district court erred by concluding that Vela’s
Texas burglary conviction was an enumerated offense constituting a crime of
violence under § 2K2.1(a)(3). With respect to the Government’s cross-appeal,
Herrold makes clear that the district court was correct in refusing to apply the
ACCA based upon Vela’s prior Texas burglary offenses.
      Accordingly,   we   VACATE      Vela’s    sentence   and   REMAND        for
resentencing consistent with this opinion.




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