United States v. Antonio Taste , 627 F. App'x 241 ( 2015 )

UNPUBLISHED
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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 a 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 violent felonies in light of our decision in
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). Although the Government posited that the enhanced ACCA
sentence was still appropriate, relying in part on Taste’s three
Massachusetts larceny from the person convictions, it agreed to
resentencing in light of Simmons. At resentencing, the district
court concluded that Taste’s 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 person constitutes a “violent felony” for ACCA
purposes. Relying on United States v. Jarmon, 596 F.3d 228,
230–33 (4th Cir. 2010) (holding that the North Carolina crime of
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larceny from the person was a crime of violence under the
residual clause of the career offender guideline), we affirmed
the judgment. See United States v. Taste, 603 F. App’x 139 (4th
Cir. 2015) (No. 14-4649).
On June 30, 2015, the Supreme Court granted Taste’s
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 ACCA—the
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 defendants and invites arbitrary enforcement by
judges. Increasing a defendant’s sentence under the clause
denies due process of law.”).
Taste now argues—and the Government appropriately concedes—
that, under Johnson, Taste’s larceny convictions no longer
support his ACCA sentence. 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. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid in the decisional process.
VACATED AND REMANDED
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