     Case: 16-40976      Document: 00514664584         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. 16-40976                              FILED
                                                                          October 2, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

JOSE EMILIO VANEGAS-MARTINEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1542-1


     ON REMAND FROM THE UNITED STATES SUPREME COURT
Before HAYNES, HO, and DUNCAN, Circuit Judges.
PER CURIAM:*
       On March 7, 2017, we issued an opinion denying Jose Emilio Vanegas-
Martinez’s challenge to 18 U.S.C. § 16(b). United States v. Vanegas-Martinez,
678 F. App’x 260 (5th Cir. 2017). Vanegas-Martinez argued that § 16(b)’s
definition of “crime of violence” was unconstitutionally vague under Johnson
v. United States, 135 S. Ct. 2551 (2015), and that his California conviction for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40976    Document: 00514664584     Page: 2   Date Filed: 10/02/2018



                                 No. 16-40976
sexual battery by restraint, see CAL. PENAL CODE § 243.4(a), was not an
“aggravated felony” for purposes of his conviction for illegal reentry under 8
U.S.C. § 1326(b)(2). See 8 U.S.C. § 1101(a)(43)(F) (defining “aggravated felony”
as including “a crime of violence” as defined in 18 U.S.C. § 16). We granted the
Government’s motion for summary affirmance, as Vanegas-Martinez’s
argument was foreclosed by our circuit precedent at the time. See United States
v. Gonzalez-Longoria, 831 F.3d 670, 673 (5th Cir. 2016), cert. granted,
judgment vacated, 138 S. Ct. 2668 (2018); see also United States v. Gonzalez-
Longoria, 894 F.3d 1274 (5th Cir. 2018) (en banc) (dismissing appeal in part
and remanding for correction of judgment). Vanegas-Martinez petitioned the
U.S. Supreme Court for certiorari. After deciding in Sessions v. Dimaya, 138
S. Ct. 1204 (2018), that § 16(b)’s definition of “crime of violence” was
unconstitutionally   vague,   the   Supreme Court remanded for           further
consideration of Vanegas-Martinez’s case in light of Dimaya. We requested
supplemental briefing from the parties.
      Both Vanegas-Martinez and the Government agree that his conviction
under 8 U.S.C. § 1326(b)(2) cannot be sustained in light of Dimaya. Both
parties also agree that Vanegas-Martinez’s conviction is proper under 8 U.S.C.
§ 1326(b)(1)—which requires only prior conviction of a “felony”—and so ask us
to remand to the district court in order to correct the judgment to that effect.
We agree that remand is appropriate to clarify that Vanegas-Martinez was
properly convicted under 8 U.S.C. § 1326(b)(1), not (b)(2). See, e.g., United
States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017).
      Accordingly, we REMAND to the district court for entry of a revised
judgment consistent herewith.




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