     Case: 15-40347      Document: 00514620541         Page: 1    Date Filed: 08/29/2018




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

                                                                                  FILED
                                    No. 15-40347                            August 29, 2018
                                 Conference Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDWIN GARRIDO, also known as Edwin Garrido-Arriaga,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-500-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DENNIS, OWEN, and WILLETT, Circuit Judges.
PER CURIAM: *
       Edwin Garrido was convicted of illegal reentry, in violation of 8 U.S.C.
§ 1326(a) and (b), and sentenced to fifty-seven months in prison and three
years of supervised release. The judgment reflects that Garrido was convicted
and sentenced under § 1326(b)(2). On appeal, Garrido argued that the district
court plainly erred by convicting and sentencing him under § 1326(b)(2)
because his prior Texas conviction for aggravated robbery did not qualify as an

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-40347

“aggravated felony” under 8 U.S.C. § 1101(a)(43)(F). We affirmed. United
States v. Garrido, 671 F. App’x 362 (5th Cir. 2016) (per curiam).
      The Supreme Court granted Garrido’s petition for a writ of certiorari,
vacated our judgment, and remanded for further consideration in light of
Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In Dimaya, the Supreme Court
held that 18 U.S.C. § 16(b) was unconstitutionally vague, and therefore could
not serve as the basis for a conviction and sentence for unlawful reentry under
§ 1326(b)(2). 138 S. Ct. at 1215. Under Dimaya, a sentence imposed under
§ 1326(b)(2) resting solely on § 16(b) is improper and “the conviction must . . .
be reformed to reflect that [the defendant] was sentenced according to 8 U.S.C.
§ 1326(b)(1).”   United States v. Godoy, 890 F.3d 531, 542 (5th Cir. 2018).
However, if the predicate offense also “has as an element the use, attempted
use, or threatened use of physical force against the person or property of
another,” it also constitutes a “crime of violence” under § 16(a). 18 U.S.C.
§ 16(a). In such circumstances, the judgment under § 1326(b)(2) should be
allowed to stand.
      The predicate offense for Garrido’s sentencing under § 1326(b)(2) is
Garrido’s 2009 Texas conviction for aggravated robbery with a deadly weapon
under Texas Penal Code § 29.03. In United States v. Lerma, 877 F.3d 628 (5th
Cir. 2017), this court held that the statute is divisible.      Accordingly, to
determine whether a conviction under Texas Penal Code § 29.03 constitutes a
“violent felony,” the modified categorical approach applies to determine under
which of the alternative elements listed in § 29.03 the defendant was convicted.
877 F.3d at 635. Applying this approach, Lerma held a conviction based on
§ 29.03(a)(2), which lists as an element that the defendant “use[d] or
exhibit[ed] a deadly weapon,” “has as an element the threatened use of physical
force against the person of another.” Id. at 636.



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                                 No. 15-40347

      Garrido concedes that if Lerma remains good law, we are required to
uphold his conviction under § 1326(b)(2) because his aggravated robbery
conviction is a “crime of violence” under § 16(a). Garrido argues that United
States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc) overruled Lerma. In
Herrold, the en banc court reiterated existing principles clarified by the
Supreme Court in Mathis v. United States, 136 S. Ct. 2243 (2016), to determine
whether a state crime is divisible. We explained that “[o]ur first task is to
determine whether state law sources resolve the question” of a statute’s
divisibility. 883 F.3d at 522. Because Lerma rested exclusively on the plain
language and structure of the statute, rather than state law sources, Garrido
argues, Herrold overruled Lerma. We disagree. Although it is true that Lerma
did not rely on state case law, Herrold did not expressly overrule Lerma, nor
did it create the interpretative principles on which Garrido rests his argument.
Herrold itself is simply an application of Mathis, which Lerma relied on. See
Lerma, 877 F.3d at 631. Thus, we cannot say that Herrold constitutes “an
intervening change in the law” permitting our departure from Lerma. See
United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013) (“Under our rule
of orderliness, only an intervening change in the law (such as by a Supreme
Court case) permits a subsequent panel to decline to follow a prior Fifth Circuit
precedent.”).
      Accordingly, Garrido’s conviction for aggravated robbery under Texas
law constitutes a crime of violence under § 16(a), and therefore his sentence
under 8 U.S.C. § 1326(b)(2) was proper notwithstanding the Supreme Court’s
decision in Dimaya.
      AFFIRMED.




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