Case: 16-10232 Document: 00514377268 Page: 1 Date Filed: 03/07/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-10232
Fifth Circuit
FILED
Summary Calendar March 7, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ANTHONY VERDEAN DANIELS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-185-1
ON PETITION FOR REHEARING
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
The Court grants the petition for panel rehearing, withdraws its
previous opinion in this matter, United States v. Daniels, 689 F. App’x 376
(5th Cir. 2017), and substitutes the following opinion.
Anthony Verdean Daniels appeals his 224-month sentence under the
Armed Career Criminal Act, 18 U.S.C. § 924(e), for possession of a firearm by
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10232 Document: 00514377268 Page: 2 Date Filed: 03/07/2018
No. 16-10232
a felon and possession of cocaine with intent to distribute. His appeal rests on
the assertion that Texas Penal Code § 30.02 is not divisible under Mathis v.
United States, 136 S. Ct. 2243 (2016). After his brief was filed, we held that
§ 30.02 is divisible under Mathis. United States v. Uribe, 838 F.3d 667, 669-71
(5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017).
Relying on Uribe, our original opinion on this appeal affirmed the district
court’s judgment. Subsequently, on February 20, 2018, this Court, sitting en
banc, expressly overruled the holding in Uribe. United States v. Herrold, __
F.3d __, No. 14-11317, 2018 WL 948373 (5th Cir. Feb. 20, 2018). More
specifically, we held that the Texas burglary statute was indivisible and that
it was broader than generic burglary. Id. at *18. Thus, the prior conviction
under the Texas burglary statute did not qualify as a violent felony. Id.
Because Daniels’s prior conviction was under the same Texas burglary statute,
we VACATE his sentence and REMAND for resentencing consistent with the
holding in Herrold.
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