USA v. Antonio Cummings

Filing

Opinion issued by court as to Appellant Antonio Dwayne Cummings. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-11504

Date Filed: 01/05/2016

Page: 1 of 3

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11504
Non-Argument Calendar
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D.C. Docket No. 3:14-cr-00083-RV-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO DWAYNE CUMMINGS,
a.k.a. Antonio Dewayne Cummings,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(January 5, 2016)
Before ED CARNES, Chief Judge, JORDAN, and JULIE CARNES, Circuit
Judges.
PER CURIAM:

Case: 15-11504

Date Filed: 01/05/2016

Page: 2 of 3

Antonio Cummings appeals his 180-month sentence, imposed after pleading
guilty to one count of violating 18 U.S.C. §§ 922(g)(1) and 924(e)(1) by
possessing a firearm as a convicted felon. The district court found that his prior
conviction for escape, in violation of Fla. Stat. § 944.40, qualified as a violent
felony under the Armed Career Criminal Act’s residual clause, 18 U.S.C.
§ 924(e)(2)(B)(ii). Cummings 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 prior convictions. This is
his appeal.
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, Cummings’ escape 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. § 944.40 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). The ACCA
applies only if the defendant has three qualifying offenses, 18 U.S.C. § 924(e)(1),

2

Case: 15-11504

Date Filed: 01/05/2016

Page: 3 of 3

and Cummings is one offense short of that requirement. For that reason, we vacate
his sentence and remand for re-sentencing.1
VACATED AND REMANDED.

1

He also requests that we remand the case so that the district court can consider whether
his two prior drug convictions are qualifying offenses under the ACCA. Because he cannot be
sentenced under the ACCA anyway, that is unnecessary.
3