United States v. Martez Cook ( 2015 )

Case: 14-12921 Date Filed: 12/03/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12921
Non-Argument Calendar
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D.C. Docket No. 8:12-cr-00490-EAK-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTEZ COOK,
a.k.a. Cuda,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 3, 2015)
Before ED CARNES, Chief Judge, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 14-12921 Date Filed: 12/03/2015 Page: 2 of 3
Martez Cook appeals his 180-month sentence for being a convicted felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e). The
district court found that Cook’s prior conviction for fleeing and eluding a police
officer, in violation of Fla. Stat. § 316.1935, qualified as a violent felony under the
Armed Career Criminal Act’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). Cook
objected, arguing that the residual clause was unconstitutionally vague. The court
overruled that objection and sentenced him as a career criminal based on that
conviction and two other uncontested prior convictions. This is his appeal.
In 2015, while Cook’s appeal was pending, the Supreme Court invalidated
the residual clause as unconstitutionally vague in Johnson v. United States, 576
U.S. ___, 135 S. Ct. 2551, 2556–57, 2563 (2015). Because of Johnson, Cook’s
fleeing and eluding conviction can serve as a predicate offense only if it qualifies
as a violent felony under a different ACCA provision. It does not. The
government agrees that Fla. Stat. § 316.1935(1)–(2) does not have “as an element
the use, attempted use, or threatened use of physical force against the person of
another,” is not “burglary, arson, or extortion,” and does not involve the “use of
explosives.” 18 U.S.C. § 924(e)(2)(B)(i)–(ii). Because the ACCA applies only if
the defendant has three qualifying offenses, 18 U.S.C. § 924(e)(1), Cook is one
2
Case: 14-12921 Date Filed: 12/03/2015 Page: 3 of 3
offense short of that requirement. For that reason, we vacate his sentence and
remand for re-sentencing.1
VACATED AND REMANDED.
1
He also contends that his mandatory minimum sentence under the ACCA is
unconstitutional in light of 18 U.S.C. § 3553(a). Because the ACCA does not apply, we need not
consider that contention.
3