Case: 19-10125     Document: 00515570888         Page: 1     Date Filed: 09/18/2020




              United States Court of Appeals
                   for the Fifth Circuit                        United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                               September 18, 2020
                                  No. 19-10125
                                                                  Lyle W. Cayce
                                Summary Calendar
                                                                       Clerk


   United States of America,

                                                           Plaintiff—Appellant,

                                       versus

   Xavier Lister,

                                                           Defendant—Appellee.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:15-CV-3523
                           USDC No. 3:12-CR-215-1


   Before Wiener, Southwick, and Duncan, Circuit Judges.
   Per Curiam:*
          The Government appeals the district court’s grant of the 28 U.S.C.
   § 2255 motion filed by Xavier Lister, former federal prisoner # 44947-177,
   challenging his 180-month prison sentence for possession of a firearm by a



          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-10125     Document: 00515570888           Page: 2   Date Filed: 09/18/2020




                                    No. 19-10125


   felon, in violation of 18 U.S.C. § 922(g)(1). The sentence was enhanced
   under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based
   on Lister’s prior convictions for Texas burglary of a building. The district
   court found that the enhancement was improper as Lister’s burglary offenses
   did not constitute “burglary” under the ACCA, § 924(e)(2)(B)(ii), in light
   of our prior en banc decision in United States v. Herrold, 

(5th
   Cir. 2018). The district court entered an amended criminal judgment,
   sentencing Lister to time served. See 18 U.S.C. § 924(a)(2).
          Now, the law has changed. The Supreme Court vacated our en banc
   ruling, see United States v. Herrold, 

(2019), and our court
   issued a new en banc decision on remand, holding that that the Texas
   burglary statute created one indivisible offense that constituted generic
   burglary. United States v. Herrold, 

, 175-77, 182 (5th Cir. 2019)
   (en banc), petition for cert. filed (U.S. Feb. 18, 2020) (No. 19-7731). Thus,
   Lister concedes that his § 2255 claim is now foreclosed although he continues
   to challenge our most recent en banc ruling, to preserve the issue for further
   review.
          Accordingly, the district court’s decision is VACATED, and this
   case is REMANDED to the district court for further consideration.




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