Case: 14-14664 Date Filed: 04/19/2016 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14664
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D.C. Docket No. 1:14-cr-20265-JEM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES BONNY GEFFRARD,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 19, 2016)
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Before MARCUS, DUBINA, and MELLOY, * Circuit Judges.
PER CURIAM:
James Geffrard was sentenced to 204 months’ imprisonment -- the
mandatory minimum sentence required by the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1), and 18 U.S.C. § 1028A(b) -- after pleading
guilty to two counts of possession of a firearm by a convicted felon in violation of
18 U.S.C. §§ 922(g)(1) and 924(e)(1); three counts of aggravated identity theft in
violation of 18 U.S.C. § 1028A(a)(1); and one count of possession of 15 or more
unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3). The district
court sentenced Geffrard under ACCA after finding that he had three qualifying
prior convictions, one of which -- fleeing or eluding a law enforcement officer in
violation of Fla. Stat. § 316.1935(1) -- qualified as a violent felony under the
residual clause of ACCA.
Geffrard has appealed his sentence, arguing, in part, that his conviction for
fleeing or eluding a law enforcement officer should not qualify as a violent felony
under ACCA because ACCA’s residual clause is unconstitutionally vague.
Subsequent to this appeal being filed, the Supreme Court issued its decision in
Johnson v. United States, 135 S. Ct. 2551 (2015), striking down the residual clause
as void for vagueness. The government now concedes, as it must, that the residual
*
Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
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clause of ACCA is unconstitutional, and that Geffrard’s conviction for fleeing or
eluding a law enforcement officer can no longer support an ACCA sentencing
enhancement.
Thus, we conclude that the district court erred in sentencing Geffrard based
on his previous conviction for fleeing or eluding a law enforcement officer under
the now-unconstitutional residual clause of ACCA. Geffrard must be resentenced
without reference to the residual clause. We leave it to the district court on remand
to determine in the first instance: (1) whether to consider a burglary conviction
listed in Geffrard’s Presentence Investigation Report, when the government did not
argue that the court should consider that conviction at Geffrard’s original
sentencing; and (2) if the district court does consider the burglary conviction,
whether that conviction qualifies as a violent felony under ACCA’s elements or
enumerated crimes clauses. 18 U.S.C. § 924(e)(2)(B).
VACATED AND REMANDED.
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