     Case: 17-10838          Document: 00514526894         Page: 1   Date Filed: 06/25/2018




                              REVISED JUNE 25, 2018

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                            No. 17-10838                  United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                    May 14, 2018
                                                                            Lyle W. Cayce
                                                    Plaintiff–Appellee,          Clerk
v.

ELISEO BENJAMIN GODOY, also known as Eliseo Galindo, also known as
Carlos Garcia, also known as Eliseo Godoy,

                                                    Defendant–Appellant.


                     Appeal from the United States District Court
                          for the Northern District of Texas


Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      In this sentencing appeal, Eliseo Godoy contends the district court
should have used the 2015 Sentencing Guidelines (those in effect when he
committed his offense) rather than the 2016 Guidelines (those in effect when
he was sentenced). The post-offense Guidelines, complains Godoy, impose a
higher sentencing range, thus violating the Ex Post Facto Clause. 1 He cites
two 2018 decisions—one from this Court and one from the United States
Supreme Court—to buoy his previously foreclosed arguments about the
enhancement effects of two prior Texas burglary convictions.


      1   U.S. CONST. art. 1, § 9, cl. 3.
     Case: 17-10838       Document: 00514526894          Page: 2     Date Filed: 06/25/2018



                                       No. 17-10838
       Godoy’s argument is well made but not well taken. The 2016 Guidelines’
cross-reference to 18 U.S.C. § 16(b)—the so-called “residual clause” in the
federal definition of “crime of violence”—is constitutionally unproblematic.
Although the Supreme Court recently ruled § 16(b) was impermissibly vague
as used in the Immigration and Nationality Act’s crime-based removal
provisions, we hold § 16(b) remains validly incorporated into the advisory
Guidelines for definitional purposes. The residual clause retains residual life.
And the bottom-line sentencing math thus turns out to be a wash: Godoy’s total
offense level is identical under both the 2015 and 2016 Guidelines.
       No harm. No foul. No ex post facto.
       We AFFIRM the district court’s sentencing order as reformed.
                                   I. BACKGROUND
A.     Godoy’s Offense and the Sentencing Recommendations
       Godoy was arrested for public intoxication on New Year’s Eve 2015.
Incident to the arrest, Immigration and Customs Enforcement officials
detained Godoy for reentering the United States without consent following a
previous deportation. Godoy was charged with illegal reentry after removal 2
and for having reentered “subsequent to a conviction for commission of an
aggravated felony.” 3 Godoy pleaded guilty.
       The probation officer preparing the presentence report (PSR) compared
sentencing under the 2015 Guidelines with sentencing under the 2016
Guidelines. The officer opted for the 2016 Guidelines, seeing no problem under
the Ex Post Facto Clause. 4



       2 See 8 U.S.C. § 1326(a).
       3 Id. § 1326(b)(2).
       4 Both the 2015 and the 2016 Guidelines provide that “[t]he court shall use the

Guidelines Manual in effect on the date that the defendant is sentenced” unless using those
Guidelines “would violate the ex post facto clause of the United States Constitution.” See U.S.
SENTENCING GUIDELINES MANUAL § 1B1.11 (U.S. SENTENCING COMM’N 2016) [2016
                                              2
     Case: 17-10838      Document: 00514526894         Page: 3    Date Filed: 06/25/2018



                                      No. 17-10838
       The PSR recommended a base offense level of eight under § 2L1.2(a) and
an eight-level enhancement under § 2L1.2(b)(3)(B), which applies when a
defendant has previously been convicted of a felony offense “for which the
sentence imposed was two years or more.” The enhancement reflected Godoy’s
two prior burglary convictions under Texas Penal Code § 30.02. The PSR also
urged a three-level reduction for acceptance of responsibility.
       Based on these calculations, Godoy received a total offense level of 13,
which, coupled with his criminal history category of IV, resulted in a 2016
Guidelines range of 24–30 months.
B.     Godoy’s Objections to the Presentence Report
       Godoy filed objections to the PSR’s reliance on the 2016 Guidelines. He
complained that using the 2016 Guidelines violated the Ex Post Facto Clause
because those Guidelines post-dated his offense and yielded a higher total
offense level than the 2015 Guidelines.
       Godoy first argued that burglary of a habitation, Penal Code § 30.02, is
not a “crime of violence” under § 2L1.2(b)(1)(A)(ii) (2015). 5 Under this theory,
his two burglary convictions would not trigger the 16-level enhancement. 6
Instead, Godoy would face only the four-level enhancement under subsection
(b)(1)(D) for a prior conviction of “any other felony.” 7 By Godoy’s math, he



U.S.S.G.]; U.S. SENTENCING GUIDELINES MANUAL § 1B1.11 (U.S. SENTENCING COMM’N 2015)
[2015 U.S.S.G.].
       5 2015 U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (defining "crime of violence" to include

“burglary of a dwelling” under state law).
       6 The 2016 Guidelines abandoned the Special Offense Characteristics enhancements

provided by the 2015 Guidelines at § 2L1.2(b)—including the 16-level enhancement under
§ 2L1.2(b)(1)(A)—opting instead for a more particularized system of enhancements. See 2016
U.S.S.G. § 2L1.2(b). In general, the new system provides for less enhancement than was
previously available under § 2L1.2(b) of the 2015 Guidelines. This change in the 2016
Guidelines is what makes possible Godoy’s ex post facto argument—that is to say, these
changes raise the potential for a sentencing range disparity between the two versions of the
Guidelines, and thus the potential for an ex post facto violation.
       7 See 2015 U.S.S.G. § 2L1.2(b)(1)(D).

                                             3
     Case: 17-10838        Document: 00514526894          Page: 4     Date Filed: 06/25/2018



                                        No. 17-10838
deserved a base offense level of eight, a four-level enhancement under
subsection (b)(1)(D), and a two-level reduction for acceptance of responsibility,
resulting in a total offense level of 10. With a criminal history category of IV,
his 2015 Guidelines range would be just 15–21 months, far preferable to the
2016 Guidelines range of 24–30 months.
       In support of his argument that Texas Penal Code § 30.02 is not a crime
of violence under § 2L1.2(b)(1)(A)(ii), Godoy urged that § 30.02 is broader than
generic “burglary of a dwelling.” 8 He acknowledged this argument was
foreclosed by our then-controlling decision in United States v. Uribe. 9 But for
preservation purposes, he asserted Uribe was wrongly decided.
       Godoy also argued that he was not subject to an eight-level enhancement
under § 2L1.2(b)(1)(C) (2015), which applies if a defendant was deported (or
unlawfully remained in the United States) after an aggravated felony
conviction. That provision adopts the definition of “aggravated felony” in 8
U.S.C. § 1101(a)(43), which in turn adopts the definition of “crime of violence”
in 18 U.S.C. § 16 10—a different “crime of violence” definition than in
§ 2L1.2(b)(1)(A)(ii).
       Godoy argued that § 16(b) was unconstitutionally vague. And even if it
were not, a § 30.02 burglary offense is not a crime of violence under § 16(b)
because burglary does not pose a serious risk of violence. Godoy acknowledged



       8 The 2015 Guidelines provide a 16-level enhancement for defendants deported after
committing a “crime of violence.” 2015 U.S.S.G. § 2L1.2(b)(1)(A)(ii). A crime of violence
includes “burglary of a dwelling.” Id. § 2L1.2 cmt. n.1(B)(iii). Because “burglary of a dwelling”
is undefined in the Guidelines, we interpret it to encompass only “the elements contained in
the generic, contemporary meaning of that offense.” United States v. Howell, 838 F.3d 489,
494 (5th Cir. 2016).
       9 838 F.3d 667, 670–71 (5th Cir. 2016).
       10 See 2015 U.S.S.G. § 2L1.2 cmt. n.3(A) (defining aggravated felony as the definition

given by 8 U.S.C. § 1101(a)(43)); 8 U.S.C. § 1101(a)(43)(F) (listing “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” as an aggravated felony).
                                               4
     Case: 17-10838       Document: 00514526894          Page: 5     Date Filed: 06/25/2018



                                       No. 17-10838
our 2016 en banc decision holding that § 16(b) is not impermissibly vague as
incorporated into the Guidelines. 11
C.     The Sentencing Hearing
       The district court overruled Godoy’s ex post facto arguments and adopted
the PSR’s findings and conclusions—including its use of the 2016 Guidelines.
The court imposed a sentence of 27 months imprisonment with no term of
supervised release. Godoy timely appealed.
                                    II. DISCUSSION
       On appeal, Godoy re-urges that the Ex Post Facto Clause required the
district court to apply the 2015 Guidelines to his 2015 offense.
       An ex post facto violation occurs when “a defendant is sentenced under
Guidelines promulgated after he committed his criminal acts and the new
version provides a higher applicable Guidelines sentencing range than the
version in place at the time of the offense.” 12 Resolving Godoy’s ex post facto
claim requires interpreting the Guidelines. “This court reviews the district
court’s interpretation and application of the Sentencing Guidelines de novo.” 13
       When this appeal began, Godoy reasserted that our 2016 Uribe decision
was wrongly decided and that § 30.02 is not a crime of violence under
§ 2L1.2(b)(1)(A)(ii) because it is broader than generic burglary. The
Government responded that, as Godoy acknowledged, Fifth Circuit caselaw




       11  See, e.g., United States v. Gonzalez-Longoria, 831 F.3d 670, 675–77 (5th Cir. 2016),
cert. denied, (U.S. May 14, 2018), and abrogated by Sessions v. Dimaya, 138 S. Ct. 1204
(2018). We recognize here that the broad statements in Gonzalez-Longoria—i.e., “that 18
U.S.C. § 16(b) is not unconstitutionally vague,” 831 F.3d at 672, and “that 18 U.S.C. § 16(b) is
not unconstitutionally vague on its face,” id. at 677—were abrogated by the Supreme Court’s
holding in Dimaya. But as explained below, we believe that Dimaya did not abrogate the
decision of Gonzalez-Longoria that § 16(b) is not impermissibly vague as used in the
Guidelines.
        12 Peugh v. United States, 569 U.S. 530, 533 (2013).
        13 United States v. Olarte-Rojas, 820 F.3d 798, 801 (5th Cir. 2016).

                                               5
     Case: 17-10838       Document: 00514526894          Page: 6     Date Filed: 06/25/2018



                                       No. 17-10838
foreclosed those arguments. But that caselaw has since changed. We therefore
evaluate Godoy’s arguments in light of these developments.
A.     Our Recent En Banc Decision in Herrold
       Turns out, Godoy was right about Uribe. After the parties filed their
initial briefs, we decided United States v. Herrold. 14 There, we overturned
Uribe and held that Texas Penal Code § 30.02(a)(1) and (a)(3) are indivisible
and that (a)(3) makes a conviction under either subsection a conviction for an
offense that is broader than generic burglary. 15 Accordingly, Godoy’s
convictions do not trigger the 16-level enhancement under § 2L1.2(b)(1)(A)(ii)
because they no longer constitute crimes of violence as defined by the
Guidelines in the commentary to that particular provision. 16
       After Herrold, the question became whether Godoy’s convictions
qualified as “aggravated felonies” for purposes of § 2L1.2(b)(1)(C). If so, Godoy
would be subject to an eight-level enhancement, and his total offense level
under the 2015 Guidelines would be the same as under the 2016 Guidelines.
In that case, there would be no ex post facto violation. But if his convictions
did not qualify as aggravated felonies, then Godoy would likely be, at most,
subject to the four-level enhancement under subsection (b)(1)(D). That would
mean the district court’s use of the 2016 Guidelines subjected Godoy to a higher
sentencing range in violation of the Ex Post Facto Clause.




       14 883 F.3d 517 (5th Cir. Feb. 20, 2018) (en banc).
       15 Id. at 529 (“In light of Texas case law, we hold that Texas Penal Code §§ 30.02(a)(1)
and (a)(3) are not distinct offenses, but are rather separate means of committing one burglary
offense. To the extent that it is inconsistent with this holding, we also overrule our earlier
decision in United States v. Uribe.”) (citation omitted); id. at 536 (“Texas’s burglary offense
allowing for entry and subsequent intent formation—is broader than generic burglary.”).
       16 Although Herrold involved a sentence enhancement under the Armed Career

Criminal Act (ACCA), how we interpret terms in the ACCA informs how we interpret the
Guidelines. See United States v. Bernel-Aveja, 844 F.3d 206, 212–14 (5th Cir. 2016) (using
cases interpreting burglary in the ACCA to define burglary in the Guidelines).
                                              6
     Case: 17-10838      Document: 00514526894          Page: 7     Date Filed: 06/25/2018



                                      No. 17-10838
      Because the initial briefing did not address this issue, we directed the
parties to file “supplemental letter brief[s] regarding whether Godoy’s prior
convictions under Texas Penal Code § 30.02 qualify as aggravated felonies
under U.S.S.G. § 2L1.2(b)(1)(C) (2015) and, particularly, whether those
convictions constitute crimes of violence under 8 U.S.C. § 1101(a)(43)(F) / 18
U.S.C. § 16.” The parties promptly complied.
      Godoy asserted that, in light of Herrold’s holding that § 30.02(a)(1) and
(a)(3) are indivisible, the offense of burglary no longer qualifies as a crime of
violence under 18 U.S.C. § 16(b). But he acknowledged our prior decisions to
the contrary. 17 He also reargued that § 16(b) is unconstitutionally vague.
      The Government countered that, as Godoy conceded, we have repeatedly
treated § 30.02 as a crime of violence under 18 U.S.C. § 16(b) and therefore an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F)—meaning § 30.02 is a
qualifying felony under § 2L1.2(b)(1)(C). The Government also noted the
Supreme Court has left no doubt that, when it comes to § 16(b) offenses, “[t]he
classic example is burglary.” 18 The Government maintained that Godoy’s
convictions subjected him to the eight-level enhancement under subsection
(b)(1)(C), giving him the same total offense level under the 2015 Guidelines as
under the 2016 Guidelines. Thus, there was no ex post facto violation.
B.    The Supreme Court’s Even More Recent Decision in Dimaya
      Turns out, Godoy was right about 18 U.S.C. § 16(b), too—to an extent.
After the parties filed their post-Herrold supplemental letter briefs, the
Supreme Court held in Sessions v. Dimaya that § 16(b), the catch-all clause in
the definition of “crime of violence,” is unconstitutionally vague as used in the
INA’s criminal-removal provisions. 19


      17 See, e.g., United States v. Guadardo, 40 F.3d 102 (5th Cir. 1994).
      18 Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).
      19 See 138 S. Ct. 1204, 1210.

                                             7
     Case: 17-10838       Document: 00514526894         Page: 8     Date Filed: 06/25/2018



                                       No. 17-10838
       After Dimaya was handed down, Godoy filed a Rule 28(j) letter noting
Dimaya’s holding and asserting that “Dimaya, combined with Herrold . . .
resolves this appeal in favor of Mr. Godoy.” The Government responded that
Dimaya has no bearing on Godoy’s appeal because, under Beckles v. United
States, the Sentencing Guidelines are not subject to vagueness challenges. 20
Godoy replied that he does not claim vagueness in the Guidelines themselves.
       In a later round of supplemental briefing, Godoy noted that “[i]n Dimaya,
as in this case, the Government argued that an alien’s prior conviction for a
non-generic burglary offense was an ‘aggravated felony’ pursuant to 8 U.S.C.
§ 1101(a)(43)(F).” He then insisted that in the wake of Dimaya, § 16(b) “is not
the law” and that it “logically follows that Texas burglary cannot become an
aggravated felony by satisfying § 16(b).”
       Under § 16(b), a crime of violence is any felony offense “that, by its
nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.” 21 If
an offense meets this definition, it constitutes an aggravated felony under 8
U.S.C. § 1101(a)(43)(F). And if an offense falls under § 1101(a)(43), it justifies
an eight-level enhancement under 2015 Guidelines § 2L1.2(b)(1)(C). 22 It is in
this context—the Guidelines context—that we must decide whether § 16(b)
maintains any vitality following Dimaya’s invalidation of § 16(b) in the INA.
       The Guidelines are not subject to vagueness challenges. So it does not
necessarily follow from Dimaya that § 16(b) is unconstitutionally vague in the


       20 See Beckles v. United States, 137 S. Ct. 886, 897 (2017) (“Because the advisory
Sentencing Guidelines are not subject to a due process vagueness challenge, § 4B1.2(a)’s
residual clause is not void for vagueness.”).
       21 18 U.S.C. § 16(b).
       22 See U.S.S.G. § 2L1.2 cmt. n.3(A) (“For purposes of subsection (b)(1)(C), ‘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)), without regard to the date of conviction for the
aggravated felony.”).
                                              8
     Case: 17-10838       Document: 00514526894         Page: 9     Date Filed: 06/25/2018



                                       No. 17-10838
Guidelines context. To the contrary, any “distinction between a vagueness
challenge to a statute incorporated into a Guideline and a vagueness challenge
to the Guideline itself is untenable.” 23 As Godoy’s counsel conceded at oral
argument, if the language of § 16(b) were cut-and-pasted directly into the
Guidelines themselves, Godoy could not bring a void-for-vagueness challenge.
This is no less true where the language of § 16(b) is incorporated into the
Guidelines by reference. Dimaya itself spells out why.
       In Dimaya, the Supreme Court explained that § 16(b) is just one cog in
the INA regime that imposes definite sentencing and deportation consequences
for aliens who commit aggravated felonies. 24 In the case of James Dimaya, the
Immigration Judges concluded his convictions for first-degree burglary under
California law qualified as “crimes of violence” under § 16(b). 25 He was
therefore deportable as a matter of law. Therein lies the rub.
       The Supreme Court held § 16(b) unconstitutional in Dimaya because the
provision, like the ACCA’s residual clause, 26 “produces more unpredictability
and arbitrariness than the Due Process Clause tolerates.” 27 But that
presupposes the Due Process Clause’s vagueness doctrine applies universally
to every context in which § 16(b) is used. Such is simply not the case when
§ 16(b) is used purely for its definitional content by the advisory-only
Guidelines. 28


       23  Gonzalez-Longoria, 831 F.3d at 683 (Jones, J., concurring).
       24  See Dimaya, 138 S. Ct. at 1211, 1217.
        25 Id. at 1211.
        26 18 U.S.C. § 924(e)(2)(B).
        27 Dimaya, 138 S. Ct. at 1223 (quoting Johnson v. United States, 135 S. Ct. 2551, 2558

(2015)).
        28 See United States v. Booker, 543 U.S. 220, 245 (2005) (holding “the Guidelines

effectively advisory”). In assessing Booker’s Sixth Amendment challenge to the Guidelines,
the Court reviewed prior constitutional challenges and reasoned that “everyone agrees that
the constitutional issues presented by these cases would have been avoided entirely if
Congress had omitted from the [Sentencing Reform Act of 1984 (SRA)] the provisions that
make the Guidelines binding on district judges.” Id. at 233. The Court went on to sever that
                                              9
    Case: 17-10838        Document: 00514526894          Page: 10     Date Filed: 06/25/2018



                                       No. 17-10838
       In holding unconstitutional the INA’s use of § 16(b) in Dimaya, and the
ACCA’s residual clause in Johnson, 29 the Supreme Court trained its sights on
the haziness of definite legal consequences and the specter of capricious
enforcement: “‘The prohibition of vagueness in criminal statutes,’ [the
Supreme Court’s] decision in Johnson explained, is an ‘essential’ of due
process, required by both ‘ordinary notions of fair play and the settled rules of
law.’” 30 “These principles apply not only to statutes defining elements of
crimes, but also to statutes fixing sentences.” 31 Under this framework, “the
Court has invalidated two kinds of criminal laws as ‘void for vagueness’: laws
that define criminal offenses and laws that fix the permissible sentences for
criminal offenses.” 32
       For some offenses, the ACCA’s residual clause acted to adjust a
defendant’s sentence from a mandated 10-year maximum to a mandated 15-
year minimum with a maximum of life. 33 In Johnson, the Court thus held the
provision unconstitutionally vague because the vagueness doctrine’s principles
applied in light of the provision’s definite legal consequences. 34 Likewise, in
the INA context, if a defendant’s prior conviction meets the definition of § 16(b),
the INA infrastructure mandates that the defendant is eligible for




provision from the SRA, rendering the Guidelines not binding on district judges and, most
critically, abrogating the Court’s previous holdings “that the Guidelines have the force and
effect of laws.” Id. at 234.
        29 Johnson, 135 S. Ct. at 2563.
        30 Dimaya, 138 S. Ct. at 1212 (quoting Johnson, 135 S. Ct. at 2557).
        31 Johnson, 135 S. Ct. at 2557 (citing United States v. Batchelder, 442 U.S. 114, 123

(1979) (emphasis added)).
        32 Beckles v. United States, 137 S. Ct. 886, 892 (2017) (emphasis in original).
        33 See Johnson, 135 S. Ct. at 2555.
        34 See id. at 2557 (“We are convinced that the indeterminacy of the wide-ranging

inquiry required by the residual clause both denies fair notice to defendants and invites
arbitrary enforcement by judges.”); see also Beckles, 137 S. Ct. at 892 (“In Johnson, we applied
the vagueness rule to a statute fixing permissible sentences.”).
                                              10
    Case: 17-10838        Document: 00514526894          Page: 11      Date Filed: 06/25/2018



                                        No. 17-10838
deportation. 35 In Dimaya, the Court thus held the INA’s use of that provision
impermissibly vague because, again, vagueness concerns were front and center
given the scheme’s definite legal consequences. 36
       But when § 16(b) is used by the nonbinding Guidelines solely for
definitional purposes, vagueness-doctrine principles do not apply. That is
because, as the Supreme Court explained in Beckles, “[t]he advisory Guidelines
. . . do not implicate the twin concerns underlying vagueness doctrine—
providing notice and preventing arbitrary enforcement.” 37 Unlike the ACCA’s
residual clause and the INA infrastructure that relies on § 16(b), “the advisory
Guidelines do not fix the permissible range of sentences” or proscribe
conduct. 38 “To the contrary, they merely guide the exercise of a court’s
discretion in choosing an appropriate sentence within the statutory range.” 39
Indeed, even were we to vacate Godoy’s sentence, the district court could re-
impose the exact same sentence.
       Godoy contends § 16(b) has been wholly nullified. He cites the Supreme
Court’s 2016 decision in Welch v. United States for the proposition that once a
statute has been held constitutionally invalid, “it can no longer mandate or
authorize any sentence.” 40 But § 16(b) does not “mandate or authorize any
sentence.” And neither do the Guidelines, which is precisely why they are not
subject to vagueness challenges. Welch dealt with the retroactivity of Johnson’s



       35  See Dimaya, 138 S. Ct. at 1211. Notably, despite the extensive discussion of § 16(b)’s
potential consequences and statutory uses, the Dimaya majority never mentions the
Sentencing Guidelines. Nor were the Guidelines discussed at oral argument. Dimaya was an
INA case, not a Guidelines case, so only so much can be read into this. But it is interesting
that neither the majority nor the parties found the Guidelines relevant to the analysis of
§ 16(b)’s constitutional reach.
        36 Id. at 1213.
        37 Beckles, 137 S. Ct. at 894.
        38 Id. at 892.
        39 Id.
        40 Welch v. United States, 136 S. Ct. 1257, 1265 (2016).

                                              11
    Case: 17-10838         Document: 00514526894            Page: 12      Date Filed: 06/25/2018



                                         No. 17-10838
holding and reasoned that “[b]y striking down the residual clause as void for
vagueness, Johnson changed the substantive reach of the ACCA, altering ‘the
range of conduct or the class of persons that the [Act] punishes.’” 41 Dimaya, on
the other hand, did not change the substantive reach of § 16(b)—it at most
changed the substantive reach of the INA. And at any rate, neither § 16(b)—a
provision that functions independently of the INA and is found in an entirely
different title of the United States Code—nor the advisory Guidelines
themselves are substantive laws that fix sentences or proscribe conduct,
making both wholly dissimilar to the ACCA’s residual clause. Taken together,
the Supreme Court’s recent trio—Johnson (2015), Beckles (2017), and Dimaya
(2018)—convinces us that the Guidelines’ continued use of § 16(b) for
definitional purposes is constitutionally inoffensive.
       Godoy insists there is nothing left of § 16(b), that it was Supremely
scrapped in Dimaya—every case, every context, every application. Godoy is
mistaken. Dimaya held § 16(b) impermissibly vague as incorporated into the
INA. But it did not repeal, abolish, or invalidate § 16(b) for all purposes under
the legal sun. 42 Section 16(b) remains on the books, not purged from
existence—at least for confined uses. And until Congress acts or we are
presented with binding authority to the contrary, § 16(b) remains incorporated
into the advisory-only Guidelines for definitional purposes. 43


       41  Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)).
       42  At oral argument, Godoy’s counsel asserted that the effect of a Supreme Court
holding of impermissible vagueness, such as in Dimaya, is that the invalidated provision “is
void in toto, barring all further actions under it.” United States v. Petrillo, 332 U.S. 1, 6 (1947).
But that argument proves too much. It is certainly true the Government may no longer
prosecute anyone under a criminal provision held facially unconstitutional. But of course
such a situation would involve, as Petrillo did, a statute that—unlike the Guidelines and
§ 16(b)—actually proscribes conduct.
        43 We note that the Eighth Circuit has concluded, as we do here, that nothing in

Dimaya declares § 16(b) impermissibly vague as used in the Guidelines. United States v.
Sanchez-Rojas, 2018 WL 2171227, at *2 (8th Cir. May 11, 2018) (“Applying the
Beckles/Johnson reasoning here, Sanchez-Rojas cannot maintain his vagueness challenge
                                                12
     Case: 17-10838     Document: 00514526894       Page: 13    Date Filed: 06/25/2018



                                    No. 17-10838
C.     Godoy’s Ex Post Facto Claim
       In light of our holding that § 16(b) remains a viable source of defining
aggravated felonies under 2015 Guidelines § 2L1.2(b)(1)(C), we conclude that
our precedent holding that Texas Penal Code § 30.02 satisfies § 16(b) survives
Dimaya. Godoy suggests our en banc decision in Herrold is separate cause to
reconsider that precedent, but we decline to read Herrold so broadly.
       Herrold held that Penal Code § 30.02(a)(1) and (a)(3) are indivisible and
ultimately broader than generic burglary, but nothing in our caselaw
classifying § 30.02 as a crime of violence under § 16(b) turns on those points.
We held in United States v. Guadardo, for example, “that burglary of a
habitation under section 30.02 of the Texas Penal Code is always a crime of
violence.” 44 We did not say “generic burglary is always a crime of violence” or
that “only § 30.02(a)(1) is always a crime of violence.” Similarly, in United
States v. Flores, we reasoned that “[u]nder § 16(b), it is clear that burglary of a
residence fits within the classification of offenses that Congress intended to
include” and noted further that “[a]ny burglary might be covered under this
language.” 45 Again, nothing in Flores limited our holding to the concept of a
generic burglary or excluded a conviction under § 30.02(a)(3). And in United
States v. Cruz, we reasoned that “[t]he district court . . . correctly concluded
that Cruz’[s] prior conviction for burglary of a habitation qualified as a ‘crime
of violence’ under § 4B1.1,” a Guidelines provision that incorporated § 16. 46
       To put a finer point on it, nothing in our caselaw holding that Texas
burglary qualifies as a crime of violence under § 16(b) turns on either a



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)).”).
       44 40 F.3d 102, 105 (5th Cir. 1994) (emphasis added).
       45 875 F.2d 1110, 1113 (5th Cir. 1989) (emphasis added).
       46 See United States v. Cruz, 882 F.2d 922, 923 (5th Cir. 1989).

                                          13
    Case: 17-10838        Document: 00514526894          Page: 14      Date Filed: 06/25/2018



                                        No. 17-10838
distinction between § 30.02(a)(1) and (a)(3) or a belief that those provisions
capture only generic burglary. This makes sense because an offense under
§ 30.02(a)(1) and (a)(3) is one “that, by its nature, involves a substantial risk
that physical force against the . . . property of another may be used in the
course of committing the offense.” 47 That is because both § 30.02(a)(1) and
(a)(3) require entering a habitation or building “without the effective consent
of the owner.” 48
       Because unlawful entry inherently produces a substantial risk of
physical force against one’s property, there is no meaningful difference
between § 30.02(a)(1) and (a)(3)—and therefore no lesson to be learned from
Herrold—when it comes to categorizing an offense under those provisions as a
crime of violence under § 16(b). Our existing caselaw indicating that any
conviction under Penal Code § 30.02 categorically qualifies as a crime of



       47  18 U.S.C. § 16(b). See, e.g., Flores, 875 F.2d at 1113 (“Whenever a private residence
is broken into, there is always a substantial risk that force will be used.”).
        48 Tex. Penal Code § 30.02(a). For this reason, we find the analysis in our vehicle

burglary cases instructive. See, e.g., Escudero-Arciniega v. Holder, 702 F.3d 781, 784 (5th Cir.
2012) (per curiam) (analogizing New Mexico’s vehicle-burglary offense to Texas’s similar
offense and noting “there is a ‘substantial risk that physical force against the person or
property of another may be used in the course of committing the offense’ under the Texas
statute”); see also United States v. Rodriguez–Guzman, 56 F.3d 18, 20 (5th Cir. 1995) (“the
burglary of a . . . vehicle often involves the application of destructive physical force to the
property of another”), overruled on other grounds, as recognized in Ibarra–Leyva v. Johnson,
623 F. App’x 163, 167 n.20 (5th Cir. 2015). Just as the offense of burglary of a vehicle requires
the unlawful entry into a vehicle and thus presents an inherent substantial risk of the use of
force against one’s property, the offense of burglary of a building or habitation requires
unlawful entry and thus presents a similarly inherent substantial risk of the use of force
against one’s property. And just as we extended this logic from vehicle burglary to
unauthorized use of a motor vehicle—which differs from vehicle burglary only in that it does
not require the intent to commit a felony or theft—we find the same logical extension applies
as between Texas Penal Code § 30.02(a)(1) and (a)(3), where subsection (a)(3) differs most
significantly in that it does not have as an element the intent to commit a further felony,
theft, or assault. See United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999)
(“Just as burglary of a vehicle involves a substantial risk that property might be damaged or
destroyed in the commission of the offense, the unauthorized use of a vehicle likewise carries
a substantial risk that the vehicle might be broken into . . . .”).
                                              14
     Case: 17-10838     Document: 00514526894         Page: 15     Date Filed: 06/25/2018



                                     No. 17-10838
violence under § 16(b) is thus unaffected by Herrold’s holding that § 30.02(a)(1)
and (a)(3) are indivisible and broader than generic burglary. As a result,
Godoy’s total offense level under the 2015 Guidelines is the same as under the
2016 Guidelines, making the district court’s use of the 2016 Guidelines trouble-
free under the Ex Post Facto Clause.
D.     The Conviction Must Be Reformed
       While Dimaya does not forbid using § 16(b) to calculate recommended
sentences under the nonbinding Guidelines, we recognize that Dimaya very
clearly speaks to situations where a sentencing maximum or minimum is
statutorily fixed. That is quite the point of Beckles. 49
       Godoy was convicted under 8 U.S.C. § 1326(a) and sentenced pursuant
to the 20-year maximum provided by § 1326(b)(2) for defendants previously
convicted of an aggravated felony. Sentencing Godoy under § 1326(b)(2) thus
required exactly what the Supreme Court held to be unconstitutional in
Dimaya: The district court relied on the INA’s definition of aggravated felony
found in § 16(b) to justify using a statutory provision that provides a definite
legal consequence—an increased, 20-year maximum.
       The difference between § 1326(b)(2) and the advisory Guidelines
highlights the holding of Beckles and reinforces our decision here. The
Guidelines do not “fix the permissible sentences for criminal offenses.” 50 Section
1326(b)(2) does. Godoy’s conviction must therefore be reformed 51 to reflect that
he was sentenced according to 8 U.S.C. § 1326(b)(1), which provides for a 10-
year maximum sentence for a defendant “whose removal was subsequent to a
conviction for commission of . . . a felony (other than an aggravated felony).” 52



       49 See Beckles, 137 S. Ct. at 892.
       50 Id. (emphasis in original).
       51 See United States v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009).
       52 8 U.S.C. § 1326(b)(1).

                                            15
   Case: 17-10838    Document: 00514526894     Page: 16   Date Filed: 06/25/2018



                                No. 17-10838
As Godoy was sentenced to 27 months imprisonment, this reformation does not
require alteration to the ordered sentence.
                             III. CONCLUSION
      Dimaya did not rewrite the federal sentencing script. Section 16(b)
remains validly incorporated into the Guidelines for definitional purposes, and
Godoy’s sentence offends neither vagueness nor ex post facto principles.
      For the above reasons, we REFORM the district court’s sentencing order
and AFFIRM as reformed.




                                      16
