                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3734
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                              Manuel Sanchez-Rojas

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the Northern District of Iowa - Waterloo
                                 ____________

                          Submitted: October 16, 2017
                             Filed: May 11, 2018
                                ____________

Before WOLLMAN, BEAM, and SHEPHERD, Circuit Judges.
                          ____________

WOLLMAN, Circuit Judge.

       Manuel Sanchez-Rojas pleaded guilty to unlawful reentry as a removed alien
after an aggravated felony conviction in violation of 8 U.S.C. §§ 1326(a) and
1326(b)(2). The district court1 determined that Sanchez-Rojas’s base offense level

      1
      The Honorable Leonard T. Strand, United States District Judge for the
Northern District of Iowa.
was eight under § 2L1.2(a) of the 2015 U.S. Sentencing Guidelines Manual
(Guidelines or U.S.S.G.). After increasing the offense level by eight for previously
having been deported after “a conviction for an aggravated felony,” U.S.S.G.
§ 2L1.2(b)(1)(C), and reducing the offense level by three for acceptance of
responsibility, U.S.S.G. § 3E1.1, the court determined that Sanchez-Rojas’s total
offense level was 13, his criminal history category was V, and his advisory
Guidelines sentencing range was 30 to 37 months’ imprisonment.2 Sanchez-Rojas
was sentenced to 37 months’ imprisonment.

       Sanchez-Rojas argues that the district court plainly erred in increasing his base
offense level by eight under U.S.S.G. § 2L1.2(b)(1)(C). The enhancement was based
on his previous burglary convictions in violation of California Penal Code § 459.
Sanchez-Rojas argues that California burglary does not satisfy the Guidelines
definition of “aggravated felony.” For purposes of the enhancement, “‘aggravated
felony’ has the meaning given that term in section 101(a)(43) of the Immigration and
Nationality Act (8 U.S.C. § 1101(a)(43)).” U.S.S.G. § 2L1.2 cmt. n.3. The Act
defines “aggravated felony” to include “a crime of violence (as defined in section 16
of Title 18, but not including a purely political offense) for which the term of
imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). According to the
government, Sanchez-Rojas’s California burglary convictions fall within the ambit
of 18 U.S.C. § 16(b), which is known as the residual clause and which defines “crime
of violence” as “any other offense that is a felony and that, by its nature, involves a




      2
        After Sanchez-Rojas was sentenced, the U.S. Sentencing Commission
amended U.S.S.G. § 2L1.2. See U.S.S.G. app. C, amend. 802. The Guidelines
citations set forth in this opinion are from the 2015 U.S. Sentencing Guidelines
Manual, which was used to determine Sanchez-Rojas’s offense level.

                                          -2-
substantial risk that physical force against the person or property of another may be
used in the course of committing the offense.”3

      Sanchez-Rojas argued on appeal that § 16(b) should be struck down as
unconstitutionally vague under the Fifth Amendment’s Due Process Clause. After
his appeal was submitted to this panel, the Supreme Court declared § 16(b) void for
vagueness. Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Sanchez-Rojas now argues
that his case must be remanded for resentencing without the § 2L1.2(b)(1)(C)
“aggravated felony” enhancement. We disagree.

       In Beckles v United States, 137 S. Ct. 886 (2017), the Supreme Court upheld
the residual clause used in U.S.S.G. § 4B1.2(a)(2), even though the Court had struck
down as unconstitutionally vague the identically worded residual clause used in the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). See Johnson v.
United States, 135 S. Ct. 2551 (2015). The Court reasoned:

      Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible
      range of sentences. To the contrary, they merely guide the exercise of
      a court’s discretion in choosing an appropriate sentence within the
      statutory range. Accordingly, the Guidelines are not subject to a
      vagueness challenge under the Due Process Clause.

Beckles, 137 S. Ct. at 892. Applying the Beckles/Johnson reasoning here, Sanchez-
Rojas cannot maintain his vagueness challenge against U.S.S.G. § 2L1.2(b)(1)(C).
We see no meaningful difference between a Guidelines section that uses the same
language as a statute (like § 4B1.2(a)(2)) and a section that incorporates the statutory
language by reference (like § 2L1.2(b)(1)(C)). Accordingly, we uphold the

      3
       The government concedes that Sanchez-Rojas’s burglary convictions do not
meet § 16(a)’s definition of “crime of violence.” See Descamps v. United States, 570
U.S. 254, 277 (2013) (holding that a conviction under California Penal Code § 459
“is never for generic burglary”).

                                          -3-
“aggravated felony” enhancement set forth in U.S.S.G. § 2L1.2(b)(1)(C),
notwithstanding its incorporation of the definition of the now-declared vague “crime
of violence” set forth in 18 U.S.C. § 16(b).

       Sanchez-Rojas also argues that his sentence is substantively unreasonable
because the district court failed to give adequate weight to his acceptance of
responsibility, the nature of his current offense, his devotion to his family, and his
minimal criminal history in the past eighteen years. The district court weighed those
factors against Sanchez-Rojas’s extensive criminal history, several deportations, and
the fact that he threatened to shoot the law enforcement officers that arrested him.
The court expressed “some concern that the advisory guideline range [was] not
sufficient,” but ultimately decided to impose a sentence at the top of the Guidelines
range. In light of the district court’s discretion “to weigh the § 3553(a) factors in
each case and assign some factors greater weight than others in determining an
appropriate sentence,” United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009),
we find no error in the court’s decision to impose a Guidelines-range sentence. See
Gall v. United States, 552 U.S. 38, 51 (2007) (“If the sentence is within the
Guidelines range, the appellate court may, but is not required to, apply a presumption
of reasonableness.”).

      The sentence is affirmed.
                      ______________________________




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