     Case: 18-20104      Document: 00514850907         Page: 1    Date Filed: 02/26/2019




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

                                    No. 18-20104                            FILED
                                  Summary Calendar                  February 26, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JULIO CESAR VASQUEZ-RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-404-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Julio Cesar Vasquez-Rodriguez appeals the sentence imposed after he
pleaded guilty to illegal reentry after a prior deportation.                   Citing Peugh
v. United States, 569 U.S. 530 (2013), he argues that the district court violated
the Ex Post Facto Clause by applying the 2016 Sentencing Guidelines in
determining his sentencing guidelines range because the 2015 Sentencing
Guidelines, which were in effect at the time he was found to be residing



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20104

illegally in the United States, would have resulted in a lower sentencing
guidelines range.
      We review the district court’s application of the Guidelines de novo.
United States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir. 2007). While
this appeal was pending, we held that the Texas offense of burglary is not a
generic burglary offense. United States v. Herrold, 883 F.3d 517, 520-37, 541-
42 (5th Cir. 2018) (en banc), petition for cert. filed (Apr. 18, 2018) (No. 17-1445)
and (May 21, 2018) (No. 17-9127). Therefore, under the 2015 Guidelines,
Vasquez-Rodriguez would not be subject to a 16-level enhancement of his
offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) based on his prior
burglary conviction. See id.; United States v. Godoy, 890 F.3d 531, 536 n.16
(5th Cir. 2018). Thus, Vasquez-Rodriguez’s guidelines range under the 2015
Guidelines would have been less than his guidelines range under the 2016
Guidelines. Herrold is the controlling law in this circuit at this time and,
therefore, the district court committed reversible error in applying the 2016
Guidelines in violation of the Ex Post Facto Clause. See Peugh, 569 U.S. at
533; see also United States v. Broussard, 669 F.3d 537, 553-55 (5th Cir. 2012).
      Vasquez-Rodriguez also argues that the district court erred in entering
a judgment under 8 U.S.C. § 1326(b)(2) because his Texas burglary conviction
does not qualify as an aggravated felony in light of Sessions v. Dimaya, 138
S. Ct. 1204, 1223 (2018). “While Dimaya does not forbid using [18 U.S.C.]
§ 16(b) to calculate recommended sentences under the nonbinding Guidelines,
. . . Dimaya very clearly speaks to situations where a sentencing maximum or
minimum is statutorily fixed.” Godoy, 890 F.3d at 541-42. The district court
therefore erred in entering a judgment reflecting a sentence pursuant to
§ 1326(b)(2), which provides for a maximum prison term of 20 years, based on
the now-unconstitutional definition of “aggravated felony” found in § 16(b).
See id. at 542.

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                                  No. 18-20104

      Accordingly, the sentence is VACATED and the case is REMANDED to
the district court for resentencing.




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