     Case: 16-40189      Document: 00514377416         Page: 1    Date Filed: 03/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-40189
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          March 7, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JESUS JOSE GASCA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-795-1


                         ON PETITION FOR REHEARING
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       The Court grants the petition for panel rehearing, withdraws its
previous opinion in this matter, United States v. Gasca, 689 F. App’x 826 (5th
Cir. 2017), and substitutes the following opinion.
       Jesus Jose Gasca appeals the sentence of 42 months of imprisonment
imposed following his guilty-plea conviction of illegal reentry into the United


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40189       Document: 00514377416         Page: 2     Date Filed: 03/07/2018


                                       No. 16-40189

States following deportation. See 8 U.S.C. § 1326(a), (b). Gasca argues that
the district court erred in treating his 2004 burglary conviction under Texas
Penal Code § 30.02 as a crime of violence because, under Mathis v. United
States, 136 S. Ct. 2243 (2016), § 30.02 is indivisible and not categorically a
crime of violence for purposes of U.S.S.G. § § 2L1.2(b)(1)(A)(ii).
       Our original opinion on this appeal affirmed the district court’s judgment
based on then-controlling precedent, which held that the Texas burglary
statute qualified as a generic burglary. See United States v. Uribe, 838 F.3d
667, 669-71 (5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017); United States
v. Conde Castaneda, 753 F.3d 172, 176 (5th Cir. 2014). Subsequently, on
February 20, 2018, this Court, sitting en banc, expressly overruled the holding
in Uribe. United States v. Herrold, __ F.3d __, No. 14-11317, 2018 WL 948373
(5th Cir. Feb. 20, 2018) (en banc). 1 More specifically, we held that the Texas
burglary statute was indivisible and that it was broader than generic burglary.
Id. at *18. Thus, the prior conviction under the Texas burglary statute did not
qualify as a violent felony. Id. Because Gasca’s prior conviction was under the
same Texas burglary statute, we VACATE his sentence and REMAND for
resentencing consistent with the holding in Herrold.




       1  Although Herrold involved the definition of “violent felony” with respect to the
Armed Career Criminal Act, 18 U.S.C. § 924(e), that phrase “has the same definition as ‘crime
of violence’ in U.S.S.G. § 2L1.2.” United States v. Najera-Mendoza, 683 F.3d 627, 631 n.3 (5th
Cir. 2012).


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