United States v. Kevin Prentice ( 2018 )

Case: 17-10113 Document: 00514465409 Page: 1 Date Filed: 05/09/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-10113 FILED
Summary Calendar May 9, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KEVIN RAY PRENTICE,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-149-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Kevin Ray Prentice pleaded guilty to possession of a firearm by a felon
in violation of 18 U.S.C. § 922(g)(1) and—pursuant to the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)—was sentenced to 188 months of
imprisonment and four years of supervised release. On appeal, he argues that
the district court (1) plainly erred by treating his conviction for possession of a
controlled substance with intent to deliver, in violation of Texas Health and
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-10113 Document: 00514465409 Page: 2 Date Filed: 05/09/2018
No. 17-10113
Safety Code § 481.112, as a serious drug offense under the ACCA and (2) erred
by treating his two Texas burglary convictions, in violation of Texas Penal Code
§ 30.02, as violent felonies under the ACCA.
As Prentice correctly acknowledges, his first argument is foreclosed by
United States v. Vickers, 540 F.3d 356 (5th Cir. 2008), but he raises it to
preserve the issue for further review. With respect to Prentice’s second issue,
we recently concluded in United States v. Herrold, 883 F.3d 517 (5th Cir. 2018)
(en banc), that § 30.02(a) is “indivisible for the purposes of categorical analysis”
and that § 30.02(a)(3) is “broader than the federal generic definition of burglary
encoded in the [ACCA].” Id. at 520-41 (quotation at 520). Consequently, a
Texas burglary conviction under § 30.02 is not a generic “burglary” under the
ACCA. See id. at 537. As two of Prentice’s predicate offenses were also under
§ 30.02, we VACATE and REMAND to the district court for resentencing in
light of Herrold.
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