     Case: 17-40862      Document: 00514515386         Page: 1    Date Filed: 06/15/2018




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

                                    No. 17-40862                              FILED
                                  Summary Calendar                        June 15, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BERNARDO REYES-HERNANDEZ, also known as Juan Antonio Reyes-
Hernandez, also known as Nayo Reyes-Hernandez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:16-CR-1429-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Bernardo Reyes-Hernandez pled guilty to illegal reentry after removal.
The district court sentenced him to 44 months in prison and three years of
supervised release. On appeal, Reyes-Hernandez seeks reformation of the
judgment to reflect conviction and sentencing under 8 U.S.C § 1326(b)(1)
rather than Section 1326(b)(2). We reform the judgment and affirm.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40862    Document: 00514515386     Page: 2   Date Filed: 06/15/2018


                                 No. 17-40862

      Reyes-Hernandez’s first argument is that Section 1326(b)(2) is
inapplicable because the supposedly predicate conviction, a 2006 Texas state
conviction for indecency by contact with a child under 17, did not actually
precede the 2003 removal date specified in the factual basis for his guilty plea.
We need not reach this issue, though, because we conclude that his second
argument clearly mandates the reformation of the judgment.
      The second argument is that his 2006 Texas state conviction for
indecency by contact with a child under 17 is not an aggravated felony under
8 U.S.C. § 1101(a)(43)(F) because the incorporated “crime of violence”
definition found in 18 U.S.C. § 16(b) is unconstitutionally vague. The Supreme
Court has recently held that such arguments are correct. See Sessions v.
Dimaya, 138 S. Ct. 1204, 1223 (2018). Reyes-Hernandez has thus shown a
clear or obvious error in the district court’s application of Section 1326(b)(2).
See Johnson v. United States, 520 U.S. 461, 468 (1997).
      Despite the validity of the vagueness challenge, Reyes-Hernandez has
admitted that the error had no effect on his substantial rights. That is because
his within-Guidelines sentence was below the 10-year statutory maximum in
Section 1326(b)(1) for removals following non-aggravated felony convictions
and the record does not indicate that the error influenced the district court’s
determination of the sentence. See United States v. Mondragon-Santiago, 564
F.3d 357, 369 (5th Cir. 2009). Resentencing is therefore not warranted, but
reformation of the judgment to reflect that Reyes-Hernandez was convicted
and sentenced under Section 1326(b)(1) is proper. See id.
      We REFORM the district court’s judgment to reflect conviction and
sentencing under 8 U.S.C. § 1326(b)(1), and AFFIRM as modified.




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