United States v. Michael Davis, Jr. , 583 F. App'x 473 ( 2014 )

Case: 14-30130 Document: 00512828227 Page: 1 Date Filed: 11/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-30130
Fifth Circuit
FILED
Summary Calendar November 6, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
MICHAEL WAYNE DAVIS, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:13-CR-26-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Michael Wayne Davis, Jr., appeals the sentence imposed following his
guilty plea conviction for possession of firearms and ammunition by a convicted
felon. Applying the Armed Career Criminal Act (ACCA) enhancement, the
district court sentenced Davis to 180 months of imprisonment.
Davis argues on appeal that he is not subject to the ACCA enhancement
because the Louisiana offense of unauthorized entry of an inhabited dwelling
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30130 Document: 00512828227 Page: 2 Date Filed: 11/06/2014
No. 14-30130
is not a violent felony as defined by the ACCA, and that the ACCA’s residual
clause is constitutionally void for vagueness. The Government has filed a
motion for a summary affirmance, or, alternatively, for an extension of time
within which to file a brief, contending that Davis’s arguments are foreclosed
by circuit precedent. The Government correctly concedes that Davis’s appeal
waiver does not bar his appeal. See United States v. House, 394 F. App’x 122,
124 (5th Cir. 2010); United States v. Harris, 434 F.3d 767, 770 (5th Cir. 2005).
With respect to Davis’s first argument, we have held that the crime of
unauthorized entry of an inhabited dwelling under Louisiana law involves
conduct that presents a serious potential risk of physical injury to another. See
United States v. O’Connor, 632 F.3d 894, 898 (5th Cir. 2011). Although
O’Connor addressed whether unauthorized entry of an inhabited dwelling was
a crime of violence for purposes of U.S.S.G. § 4B1.2, id., we have “previously
applied our holdings under the residual clause of the ACCA to analyze the
definition of crimes of violence under § 4B1.2, and vice versa.” United States
v. Hughes, 602 F.3d 669, 673 n.1 (5th Cir. 2010). In a recent unpublished
decision, we concluded that an intervening Supreme Court decision did not
overrule O’Connor and held that the Louisiana unauthorized entry offense was
a violent felony under the ACCA. United States v. Arteaga, 436 F. App’x 343,
350-51 (5th Cir. 2011). While the parties contend that Arteaga forecloses
Davis’s argument, that decision is not precedent. See 5TH CIR. R. 47.5.4.
Nevertheless, given the holding of O’Connor and the persuasive analysis in
Arteaga, we agree with the parties that Davis’s argument fails. Davis’s
constitutional challenge to the ACCA is foreclosed, as he concedes. See James
v. United States, 550 U.S. 192, 210 n.6 (2007); United States v. Gore, 636 F.3d
728, 742 (5th Cir. 2011).
2
Case: 14-30130 Document: 00512828227 Page: 3 Date Filed: 11/06/2014
No. 14-30130
The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is DENIED, and its alternative motion for an
extension of time to file a brief is DENIED as unnecessary.
3