Case: 16-41000 Document: 00514541164 Page: 1 Date Filed: 07/05/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 16-41000 July 5, 2018 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee Cross-Appellant v. GABRIEL VELA, Defendant-Appellant Cross-Appellee

Appeals from the United States District Court for the Southern District of Texas USDC No. 2:15-CR-429-1

Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM: * Gabriel Vela was convicted of felony possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and he was sentenced to 46 months of imprisonment. On appeal, he argues that the district court erred by increasing his base offense level pursuant to U.S.S.G.

§ 2K2.1(a)(3) based on its finding that his prior Texas burglary convictions were enumerated offenses constituting crimes of violence. The Government

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-41000 Document: 00514541164 Page: 2 Date Filed: 07/05/2018

No. 16-41000 cross-appeals, arguing that the district court erred in failing to treat these prior burglary offenses as violent felonies for purposes of an enhancement under the Armed Career Criminal Act (ACCA).

We recently held in United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), that the Texas burglary statute, Texas Penal Code § 30.02(a), is indivisible and broader than generic burglary as enumerated in the ACCA. In United States v. Godoy, 890 F.3d 531, 536 (5th Cir. 2018), we established that this holding extends to the definition of crime of violence under the Guidelines.

In light of Herrold and Godoy, the district court erred by concluding that Vela’s Texas burglary conviction was an enumerated offense constituting a crime of violence under § 2K2.1(a)(3). With respect to the Government’s cross-appeal, Herrold makes clear that the district court was correct in refusing to apply the ACCA based upon Vela’s prior Texas burglary offenses.

Accordingly, we VACATE Vela’s sentence and REMAND for resentencing consistent with this opinion.