United States v. Lister

United States Court of Appeals
for the Fifth Circuit

No. 19-10125
Summary Calendar

United States of America,

Plaintiff—Appellant,

versus

Xavier Lister,

Defendant—Appellee.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CV-3523
USDC No. 3:12-CR-215-1

Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
The Government appeals the district court’s grant of the 28 U.S.C.
§ 2255 motion filed by Xavier Lister, former federal prisoner # 44947-177,
challenging his 180-month prison sentence for possession of a firearm by a

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
September 18, 2020

Lyle W. Cayce
Clerk
Case: 19-10125 Document: 00515570888 Page: 1 Date Filed: 09/18/2020

No. 19-10125
2
felon, in violation of 18 U.S.C. § 922(g)(1). The sentence was enhanced
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based
on Lister’s prior convictions for Texas burglary of a building. The district
court found that the enhancement was improper as Lister’s burglary offenses
did not constitute “burglary” under the ACCA, § 924(e)(2)(B)(ii), in light
of our prior en banc decision in United States v. Herrold, 883 F.3d 517 (5th
Cir. 2018). The district court entered an amended criminal judgment,
sentencing Lister to time served. See 18 U.S.C. § 924(a)(2).
Now, the law has changed. The Supreme Court vacated our en banc
ruling, see United States v. Herrold, 139 S. Ct. 2712 (2019), and our court
issued a new en banc decision on remand, holding that that the Texas
burglary statute created one indivisible offense that constituted generic
burglary. United States v. Herrold, 941 F.3d 173, 175-77, 182 (5th Cir. 2019)
(en banc), petition for cert. filed (U.S. Feb. 18, 2020) (No. 19-7731). Thus,
Lister concedes that his § 2255 claim is now foreclosed although he continues
to challenge our most recent en banc ruling, to preserve the issue for further
review.
Accordingly, the district court’s decision is VACATED, and this
case is REMANDED to the district court for further consideration.
Case: 19-10125 Document: 00515570888 Page: 2 Date Filed: 09/18/2020