FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 17, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-16522

Non-Argument Calendar

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D. C. Docket No. 06-80108-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TICO DAKTARI HOLMAN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(December 17, 2008)

ON REMAND FROM THE

SUPREME COURT OF THE UNITED STATES

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
Tico Daktari Holman appealed his conviction and 189-month sentence for

possession with intent to distribute 500 grams or more of cocaine, in violation of

21 U.S.C. § 841(a)(1). On February 15, 2008, we ruled the district court correctly

sentenced Holman as a career offender, pursuant to U.S.S.G. § 4B1.1. That

determination was based, in part, on his prior conviction for carrying a concealed

weapon, in violation of Florida Statute § 790.01(2). United States v. Holman, 265

Fed. Appx. 812 (11th Cir. 2008). Holman then petitioned the Supreme Court for

certiorari. Meanwhile, the Supreme Court rendered a decision in Begay v. United

States, 128 S. Ct. 1581 (2008), concluding that the felony offense of driving under

the influence was not a “violent felony” within the meaning of the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e). The Supreme Court granted certiorari

in Holman, vacated our decision, and remanded the case for further consideration

in light of Begay. Holman v. United States, __ S. Ct. __, 2008 WL 2127101 (U.S.

Oct. 6, 2008). On remand, the Government has confessed that the district court

erred by considering Holman’s prior conviction for carrying a concealed weapon a

crime of violence.

We review de novo “the district court’s decision to classify a defendant as a

career offender pursuant to U.S.S.G. § 4B1.1.” United States v. Gibson, 434 F.3d

1234, 1243 (11th Cir. 2006). A district court generally may enhance a defendant’s

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sentence as a career offender “if (1) the defendant was at least eighteen years old at

the time the defendant committed the instant offense of conviction; (2) the instant

offense of conviction is a felony that is either a crime of violence or a controlled

substance offense; and (3) the defendant has at least two prior felony convictions

of either a crime of violence or a controlled substance offense.” U.S.S.G.

§ 4B1.1(a). The Sentencing Guidelines define a “crime of violence” as a crime

punishable by a year or more of imprisonment, that

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or (2) is a burglary of a

dwelling, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical

injury to another.

U.S.S.G. § 4B1.2(a)(1).

In Begay, the Supreme Court addressed whether a conviction for felony

driving under the influence constituted a “violent felony” under the ACCA. Begay,

128 S. Ct. at 1584. The Court, assuming that driving under the influence presented

a serious potential risk of physical injury to another, concluded that such crimes

were violent felonies only to the extent that they were “roughly similar, in kind as

well as in degree of risk posed,” to the crimes enumerated in the ACCA–burglary,

arson, extortion, and crimes involving the use of explosives. Id. at 1584-85.

Applying this standard to felony driving under the influence, the Supreme Court

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held that the offense was not a violent felony because a conviction for driving

under the influence did not require a showing of purposeful, violent, aggressive

conduct, but was more comparable to strict liability crimes where no intent was

required. Id. at 1586-87.

Applying the standard announced in Begay, we later held that the crime of

carrying a concealed weapon no longer could be considered a crime of violence

under § 4B1.1, and concluded that our decision in United States v. Gilbert, 138

F.3d 1371 (11th Cir. 1998), which held otherwise, had been abrogated by Begay.

Unites States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).

In light of our decision in Archer and the Government’s confession of error,

we vacate Holman’s sentence and remand his case for resentencing consistent with

this opinion.

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VACATED AND REMANDED.

 Holman’s motion for expedited appeal on remand is denied as moot. 1

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