US v. Antonio Taste

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00280-WO-1 Copies to all parties and the district court/agency. [999727326].. [14-4649]

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UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

United

States

banc).

violent
v.

felonies

Simmons,

in

of

F.3d

649

light

our

237

(4th

decision

Cir.

2011)

in
(en

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

purposes.

person

constitutes

a

“violent

felony”

for

ACCA

Relying on United States v. Jarmon, 596 F.3d 228,

230–33 (4th Cir. 2010) (holding that the North Carolina crime of
2

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larceny

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from

the

person

was

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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

judges.

defendants
Increasing

and

a

invites

defendant’s

arbitrary
sentence

enforcement

under

the

by

clause

denies due process of law.”).
Taste now argues—and the Government appropriately concedes—
that,

under

Johnson,

Taste’s

support his ACCA sentence.

larceny

convictions

no

longer

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.
dispense

with

oral

argument

because

3

the

facts

and

We
legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid in the decisional process.

VACATED AND REMANDED

4