     Case: 16-20785      Document: 00514665992         Page: 1    Date Filed: 10/02/2018




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

                                    No. 16-20785                              FILED
                                  Summary Calendar                      October 2, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARIO DELGADO CRUZ, also known as Mario Delgado, also known as Mario
Cruz Delgado, also known as Daniel Delgado, also known as Mario Cruz-
Delgado,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-168-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Mario Delgado Cruz appealed following his guilty plea conviction and
sentence for illegal reentry. He asserted that that the district court reversibly
erred by convicting, sentencing, and entering judgment against him under 8
U.S.C. § 1326(b)(2) based upon its determination that his prior Texas


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20785     Document: 00514665992      Page: 2    Date Filed: 10/02/2018


                                  No. 16-20785

conviction for burglary of a habitation qualified as a crime of violence under
18 U.S.C. § 16(b) and, therefore, an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F). This court affirmed in United States v. Cruz, 692 F. App’x
187, 187-88 (5th Cir. 2017). 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 Supreme Court
invalidated the § 16(b) crime of violence definition as unconstitutionally vague.
      At our request, Cruz and the Government submitted supplemental letter
briefs addressing the impact of Dimaya. They agree that in light of Dimaya’s
invalidation of § 16(b), Cruz’s prior Texas conviction for burglary of a
habitation does not constitute an aggravated felony for purposes of
§ 1326(b)(2). See United States v. Godoy, 890 F.3d 531, 536-42 (5th Cir. 2018).
As a result, the judgment erroneously reflects that Cruz was sentenced as an
aggravated felon under §1326(b)(2). See id. at 542.
      Accordingly, we REMAND to the district court for the limited purpose of
correcting the judgment to reflect that the statutory sentencing provision is
§ 1326(b)(1), not § 1326(b)(2), and for deletion of the incorrect description of the
offense as “[i]llegal re-entry by a previously deported alien after an aggravated
felony conviction.” In all other respects, the judgment is AFFIRMED.




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