     Case: 17-20521      Document: 00514634624         Page: 1    Date Filed: 09/10/2018




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

                                                                                FILED
                                    No. 17-20521                        September 10, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ABRAHAM HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-210-1


Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM: *
       Abraham Hernandez appeals the 57-month sentence imposed following
his guilty plea for illegal reentry after deportation. Citing Peugh v. United
States, 569 U.S. 530 (2013), Hernandez 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, that were in effect at the time he was found unlawfully in the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20521

United States, would have resulted in a lower sentencing guidelines range. He
argues that his prior Texas conviction for burglary no longer qualifies as a
crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015), and that therefore,
he would not have received a 16-level enhancement under the 2015 Guidelines.
      While this appeal was pending, we overruled prior precedent and held
that the Texas burglary statute is not divisible and is broader than the generic
definition burglary. United States v. Herrold, 883 F.3d 517, 529, 541 (5th Cir.
2018) (en banc), petitions for cert. filed (Apr. 18, 2018) (No. 17-1445) and (May
21, 2018) (No. 17-9127).       We then expressly applied this holding to
§ 2L1.2(b)(1)(A)(ii) (2015), concluding that Texas burglary is no longer a crime
of violence for the purposes of the 16-level enhancement. United States v.
Godoy, 890 F.3d 531, 536 (5th Cir. 2018).
      In Godoy, we concluded that although the Supreme Court held in
Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018), that the residual clause
definition of crime of violence in 18 U.S.C. § 16(b) was unconstitutionally
vague, Dimaya does not prohibit the use of § 16(b) to calculate sentences under
the advisory Guidelines. Godoy, 890 F.3d at 541. Thus, Hernandez’s Texas
burglary conviction would have resulted in an eight-level increase under the
2015 Guidelines as an aggravated felony. See § 2L1.2(b)(1)(C) (2015); Godoy,
890 F.3d at 541. With a base offense level of eight and a three-level reduction
for acceptance of responsibility, Hernandez’s total offense level would have
been 13 under the 2015 Guidelines compared to his total offense level of 21
under the 2016 Guidelines. Therefore, the application of the 2016 Guidelines
to Hernandez resulted in an ex post facto violation. See Peugh, 569 U.S. at
533. Additionally, the record does not show that the error was harmless. See
United States v. Martinez-Romero, 817 F.3d 917, 924 (5th Cir. 2016).




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                                    No. 17-20521

      Hernandez 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 Dimaya. “While Dimaya
does not forbid using § 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. Thus, the district court 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.
      Accordingly, the judgment is VACATED and the case is REMANDED for
resentencing.




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