Fourth Circuit Vacates ACCA Sentence
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4649
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO TASTE,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 14-8848)
Submitted:
November 12, 2015
Decided:
December 30, 2015
Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Steven A. Feldman, FELDMAN and FELDMAN, Uniondale, New York, for
Appellant.
Ripley Rand, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio
Taste
pled
guilty,
pursuant
to
written
plea
agreement, to possessing a firearm after being convicted of a
felony, in violation of 18 U.S.C. 922(g)(1), 924 (2012).
He
was sentenced under the Armed Career Criminal Act (ACCA) to 180
months in prison.
After an unsuccessful direct appeal, Taste
filed a 28 U.S.C. 2255 (2012) motion, arguing that his four
North Carolina breaking and entering convictions could no longer
be
considered
United
States
banc).
violent
v.
felonies
Simmons,
649
in
light
of
our
F.3d
237
(4th
decision
Cir.
2011)
in
(en
Although the Government posited that the enhanced ACCA
sentence was still appropriate, relying in part on Tastes three
Massachusetts larceny from the person convictions, it agreed to
resentencing in light of Simmons.
At resentencing, the district
court concluded that Tastes prior Massachusetts convictions for
larceny from the person were violent felonies for purposes of
the
ACCA,
and
again
applied
the
enhanced
mandatory
minimum
sentence of 180 months imprisonment.
On
appeal,
Taste
claimed,
in
relevant
part,
that
the
district court erred in designating him an armed career criminal
based on its finding that the Massachusetts crime of larceny
from
the
purposes.
person
constitutes
violent
felony
for
ACCA
Relying on United States v. Jarmon, 596 F.3d 228,
23033 (4th Cir. 2010) (holding that the North Carolina crime of
2
larceny
from
the
person
was
crime
of
violence
under
the
residual clause of the career offender guideline), we affirmed
the judgment.
See United States v. Taste, 603 F. Appx 139 (4th
Cir. 2015) (No. 14-4649).
On
June
30,
2015,
the
Supreme
Court
granted
Tastes
petition for a writ of certiorari, vacated the judgment, and
remanded to this court for further consideration in light of
Johnson v. United States, 135 S. Ct. 2551 (2015).
In Johnson,
the Supreme Court held that the residual clause of the ACCAthe
final clause of 924(e)(2)(B)(ii) (2012)is unconstitutionally
vague.
135 S. Ct. at
2557 ([T]he indeterminacy of the wide-
ranging inquiry required by the residual clause both denies fair
notice
to
judges.
defendants
Increasing
and
invites
defendants
arbitrary
sentence
enforcement
under
the
by
clause
denies due process of law.).
Taste now arguesand the Government appropriately concedes
that,
under
Johnson,
Tastes
support his ACCA sentence.
larceny
convictions
no
longer
Without these convictions, Taste
does not have three predicate offenses to qualify him as an
armed career criminal.
Accordingly, we vacate the judgment and
remand the case to the district court for resentencing.
dispense
with
oral
argument
because
the
facts
and
We
legal
contentions
are
adequately
presented
in
the
materials
before
this court and argument would not aid in the decisional process.
