     Case: 15-20637      Document: 00514650581         Page: 1    Date Filed: 09/20/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                    No. 15-20637
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                        September 20, 2018
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

JOSE SANCHEZ OLIVAREZ, also known as Jose G. Sanchez, also known as
Jose Guadalup Olivarez Sanchez, also known as Jose Guadalupe Olivare
Sanchez, also known as Jose Guadalupe Sanchez-Olivarez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-355-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Jose Sanchez Olivarez pleaded guilty of illegal reentry by a previously
deported alien after an aggravated felony conviction and was sentenced to
18 months in prison and three years of supervised release. On appeal, Sanchez
Olivarez contended that the district court erred by classifying his prior


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20637    Document: 00514650581     Page: 2   Date Filed: 09/20/2018


                                 No. 15-20637

conviction of evading arrest as an aggravated felony under 8 U.S.C.
§ 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(C) (2014). Sanchez Olivarez claimed
that the conviction was not a crime of violence under 18 U.S.C. § 16(b) and thus
not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). This court affirmed
in United States v. Sanchez Olivarez, 670 F. App’x 254 (5th Cir. 2016). The
Supreme Court granted certiorari, vacated, and remanded for further
consideration in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018).         In
Dimaya, 138 S. Ct. at 1210, 1223, the Court held that the residual clause of
§ 16(b) is unconstitutionally vague.
      At our request, the parties provided supplemental letter briefs
addressing the effect of Dimaya.           The parties acknowledge that the
unconstitutionality of § 16(b)’s residual clause does not render erroneous the
district court’s application of the § 2L1.2(b)(1)(C) enhancement. See United
States v. Godoy, 890 F.3d 531, 540 (5th Cir. 2018). Additionally, Sanchez
Olivarez contends—and the Government does not dispute—that, in light of
Dimaya’s invalidation of § 16(b), his predicate Texas conviction of evading
arrest with a motor vehicle does not constitute an aggravated felony for
purposes of § 1326(b)(2). As a result, the judgment must be reformed to the
extent it states that Sanchez Olivarez was convicted and sentenced under
§ 1326(b)(2) for “[i]llegal re-entry by a previously deported alien after an
aggravated felony conviction.”
      Accordingly, we REMAND for correction of the judgment to show
conviction under § 1326(b)(1) instead of § 1326(b)(2). In all other respects, the
judgment is AFFIRMED.




                                       2
