Case: 15-10955    Date Filed: 12/21/2015   Page: 1 of 3


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10955
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cr-20698-JAL-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

CARLOS ANTONIO GERMAN,
a.k.a. Platano,

                                                         Defendant-Appellant.

                      ________________________

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

                            (December 21, 2015)

Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
             Case: 15-10955    Date Filed: 12/21/2015    Page: 2 of 3


      Carlos German was sentenced to 180-months imprisonment, the mandatory

minimum sentence required by the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e)(1), after pleading guilty to possession of a firearm as a convicted

felon in violation of 18 U.S.C. § 922(g)(1). The district court sentenced German

under the ACCA after finding that he had three prior convictions, one of which,

attempted burglary of an unoccupied structure in violation of Fla. Stat. § 810.02,

qualified as a violent felony under the residual clause of the ACCA. German

appeals his sentence, arguing that the district court erred in applying a sentencing

enhancement under the ACCA because the residual clause of the ACCA is

unconstitutionally vague and because his prior conviction for attempted burglary

cannot be a predicate “violent felony” under the enumerated offenses clause of

the ACCA. The government concedes that the residual clause of the ACCA is

unconstitutional under the Supreme Court’s recent decision in Johnson v. United

States, 576 U.S. __, 

, 2557-58 (2015), but contends that attempted

burglary as defined by Florida qualifies as a predicate “violent felony” under the

enumerated offenses clause of the ACCA.

      After review of the parties’ briefs and the record on appeal, we conclude

that the district court erred in sentencing German based on his previous attempted

burglary conviction under the now-unconstitutional residual clause of the ACCA.

He must be resentenced without reference to the residual clause. We leave it to


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             Case: 15-10955     Date Filed: 12/21/2015   Page: 3 of 3


the district court in the first instance to determine whether a sentencing

enhancement may be sustained in these circumstances based upon another clause

of the ACCA.

      VACATED AND REMANDED.




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