     Case: 15-41013      Document: 00514595724         Page: 1    Date Filed: 08/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                    United States Court of Appeals
                                    No. 15-41013                             Fifth Circuit


                                  Summary Calendar                         FILED
                                                                     August 10, 2018
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

              Plaintiff - Appellee

v.

HELBER VALDEZ, also known as Helber Valdez Carrion

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:15-CR-208-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Helber Valdez was convicted of illegal reentry after deportation. When
entering judgment, the court classified the offense as illegal reentry following
a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and
(b)(2). The judgment the district court entered was consistent with the state



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41013     Document: 00514595724     Page: 2   Date Filed: 08/10/2018



                                  No. 15-41013
of the law at that time. Valdez’s Texas conviction for burglary qualified as an
aggravated felony because it was a “crime of violence” under 18 U.S.C. § 16(b).
And we had rejected vagueness challenge to § 16(b). United States v. Gonzalez-
Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc). Since that time, however,
the Supreme Court has taken the opposing view and held that section 16(b)
violates the Due Process Clause. Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
      After deciding Dimaya, the Supreme Court granted Valdez’s petition for
a writ of certiorari, vacated our judgment, and remanded for further
consideration in light of that decision. Dimaya means that § 16(b) can no
longer serve as a basis for classifying the prior offense as an aggravated felony.
And the Texas burglary statute does not qualify as generic burglary, so that
cannot serve as a basis for treating the prior offense as an aggravated felony.
See United States v. Herrold, 883 F.3d 517 (5thCir. 2018) (en banc), petition for
cert. filed (Apr. 18, 2018) (No. 17-1445). We reject the government’s request to
hold this decision pending the petition for certiorari filed in Herrold. See
United States v. Valle-Jaimes, No. 16-50993, 2018 WL 3634782 (July 30, 2018).
      In light of Dimaya, we therefore VACATE the district court’s judgment
and REMAND for entry of judgment under 8 U.S.C. § 1326(b)(1) rather than
§ 1326(b)(2).




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