IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10607

UNITED STATES OF AMERICA, 

 Plaintiff - Appellant

v.

VERNON LEE WHEELER, 

 Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CR-75-1

ON PETITION FOR REHEARING

Before KING, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

The petition for panel rehearing filed by the Government is GRANTED, 

and the opinion of the court entered on August 1, 2018 (United States v.

Wheeler, 733 F. App’x 221 (5th Cir. 2018) (per curiam)), is VACATED. The 

following opinion is substituted in its place.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 15, 2019

Lyle W. Cayce

Clerk

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No. 17-10607

2

Vernon Lee Wheeler pleaded guilty to a charge of felon in possession of 

a firearm in violation of 18 U.S.C. § 922(g)(1). During sentencing, the question

arose of whether Wheeler’s four prior convictions under Texas law for 

aggravated robbery qualified as “violent felonies” for purposes of the Armed 

Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1) (providing a fifteen-year 

mandatory minimum sentence). The district court ruled in Wheeler’s favor 

and sentenced him to thirty-three months. The Government timely appealed.

In our original opinion, we relied upon United States v. Burris, 896 F.3d 

320 (5th Cir. 2018), which held that simple robbery is not a crime of violence 

for purposes of the ACCA. That conclusion was important because we 

concluded that the United States had waived “any argument based on the 

divisibility of the Texas aggravated robbery statute, as well as any argument 

based on differences between simple and aggravated robbery.” Wheeler, 733 F. 

App’x at 222–23. The Burris opinion we relied upon has since been withdrawn. 

United States v. Burris, 908 F.3d 152 (5th Cir. 2018) (per curiam). 

Additionally, in the intervening time between our original opinion and this 

opinion, additional decisions have been issued in other cases that bear upon 

the relevant law applicable to the issues here, particularly: Stokeling v. United 

States, 139 S. Ct. 544 (2019) and United States v. Reyes-Contreras, 910 F.3d 

169 (5th Cir. 2018) (en banc).

Both sides have had an opportunity to brief these cases. In addition to 

arguing the impact of these cases on this case, Wheeler argues that applying 

the new decisions retroactively violates due process.

Having considered the arguments of the parties in light of applicable 

law, we conclude that it is best to vacate the sentence in this case and remand 

for a full resentencing where the district court will have the opportunity, in the 

first instance, to consider the sentence in this case in light of these and any 

other new cases, as well as the arguments about whether applying such cases 

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to Wheeler’s sentence is consistent with due process. See, e.g., United States 

v. Darwish, No. 17-60228, 2018 U.S. App. LEXIS 32256, at *8–9 (5th Cir. Nov. 

14, 2018) (per curiam); United States v. Hoffman, 901 F.3d 523, 560 (5th Cir. 

2018), petition for cert. filed, (Feb. 11, 2019) (No. 18-1049); Luke v. CPlace 

Forest Park SNF, L.L.C., 608 F. App'x 246, 246-47 (5th Cir. 2015); Vicknair v. 

Formosa, 98 F.3d 837, 838-39 (5th Cir. 1996). Accordingly, the district court’s 

sentence1 is VACATED, and the case is REMANDED for resentencing. 

 

1 Wheeler did not appeal his conviction, which remains in place.

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