USA v. Antonio Maldonado

Filing

UNPUBLISHED OPINION ORDER FILED on Remand from the Supreme Court of the United States. [14-40562 Vacated and Remanded] Judge: ECP , Judge: PRO , Judge: JEG; denying as moot motion to recall mandate filed by Appellant Mr. Antonio Maldonado [7966276-2]; denying as moot motion to file rehearing out of time filed by Appellant Mr. Antonio Maldonado [7966276-3] [14-40562]

Case: 14-40562

Document: 00513376826

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Date Filed: 02/11/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40562
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
February 11, 2016

UNITED STATES OF AMERICA,
Plaintiff–Appellee,

Lyle W. Cayce
Clerk

v.
ANTONIO MALDONADO,
Defendant–Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:12-CR-175
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
The Supreme Court granted Antonio Maldonado’s petition for certiorari,
vacated this court’s judgment, and remanded for further proceedings 1 in light

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

1

Maldonado v. United States, 136 S. Ct. 510 (2015) (Mem.).

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of Johnson v. United States. 2 We vacate Maldonado’s sentence and remand for
further proceedings.
I
The district court imposed a fifteen-year minimum sentence after
concluding that the Armed Career Criminal Act (ACCA) 3 applied based on
three predicate convictions. Two of those convictions were for evading arrest
or detention using a vehicle, a violation of Texas Penal Code § 38.04. 4 The
district court concluded that these offenses came within the residual clause of
the ACCA because they “involve[d] conduct that presents a serious potential
risk of physical injury to another.” 5 We affirmed this conclusion on appeal. 6
Eight days later, the Supreme Court issued its decision in Johnson v. United
States, which held that the residual clause is unconstitutionally vague. 7
Maldonado filed a petition for certiorari asking that our decision be vacated in
light of Johnson. The Supreme granted certiorari, vacated our judgment, and
remanded the case to this court for further consideration. 8
II
The judgment against Maldonado was not final when Johnson was
decided, 9 and the Johnson decision announced law that applies in Maldonado’s

2

135 S. Ct. 2551 (2015).

3

18 U.S.C. § 924(e)(1).

See United States v. Harrimon, 568 F.3d 531, 537 (5th Cir. 2009) (concluding that
the violation of this statute is a violent felony under the ACCA’s residual clause).
4

5

18 U.S.C. § 924(e)(2)(B)(i)-(iii).

6

United States v. Maldonado, 608 F. App’x 244, 244 (5th Cir. 2015) (per curiam).

7

135 S. Ct. at 2557.

8

Maldonado v. United States, 136 S. Ct. 510 (2015) (Mem.).

See Gonzalez v. Thaler, 132 S. Ct. 641, 653 (2012) (“[A] federal judgment becomes
final ‘when this Court affirms a conviction on the merits on direct review or denies a petition
for a writ of certiorari,’ or, if a petitioner does not seek certiorari, ‘when the time for filing a
certiorari petition expires.’” (quoting Clay v. United States, 537 U.S. 522, 527 (2003))).
9

2

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case. Since Maldonado did not argue in the district court or the court of appeals
that the residual clause was unconstitutionally vague, “we review the issue for
plain error.” 10

Whether the error was plain is measured “at the time of

appellate consideration,” even though the district court’s application of the
mandatory minimum was consistent with the law at the time. 11
Under plain error review, the defendant is entitled to relief if there is an
“error or defect” that is “clear or obvious” and “affected the appellant’s
substantial rights.” 12 If these criteria are met, we have discretion to correct
the error if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” 13 The first prong is met in this case. The second prong
is also met; Maldonado’s substantial rights were affected by the error because
it “affected the outcome of the district court proceedings.” 14 It does not appear
from the record available to us that Maldonado has three criminal convictions
for “serious drug offense[s]” or “violent felon[ies].” 15 Without three predicate
convictions, Maldonado would have faced a maximum of ten years’
imprisonment, rather than a minimum of fifteen years. 16

There is a

United States v. Hornyak, 805 F.3d 196, 199-200 (5th Cir. 2015) (vacating sentence
of prisoner and remanding for resentencing after Supreme Court vacated decision below in
light of Johnson).
10

Henderson v. United States, 133 S. Ct. 1121, 1127 (2013) (“[I]t [is] ‘enough that an
error be “plain” at the time of appellate consideration’ for that error to fall within Rule 52(b)’s
category of ‘plain error.’” (quoting Johnson v. United States, 520 U.S. 461, 468 (1997))).
11

12

Puckett v. United States, 556 U.S. 129, 135 (2009).

13

Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

United States v. Prieto, 801 F.3d 547, 550 (5th Cir. 2015) (per curiam) (quoting
Puckett, 556 U.S. at 135).
14

15

See 18 U.S.C. § 924(e)(1).

16

Id. § 924(a)(2), (e)(1).

3

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“reasonable probability that, but for the district court’s error, [Maldonado]
would have received a lesser sentence.” 17
The Supreme Court has explained that our discretion to correct plain
error ought only be exercised “if the error ‘seriously affects the fairness,
integrity or public reputation of judicial proceedings.’” 18 This standard is met
here because requiring Maldonado to serve an additional five years in prison
based on a statute that has since been held unconstitutional “would cast
significant doubt on the fairness of the criminal justice system.” 19
*

*

*

The judgment of the district court therefore is VACATED and the case
is REMANDED for further sentencing proceedings in light of Johnson.

See United States v. Rivera, 784 F.3d 1012, 1018 (5th Cir. 2015) (brackets omitted)
(quoting United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010)).
17

18

Puckett, 556 U.S. at 135 (brackets omitted) (quoting Olano, 507 U.S. at 736).

19

United States v. Hornyak, 805 F.3d 196, 199 (5th Cir. 2015).

4