     Case: 15-41034      Document: 00514544296        Page: 1     Date Filed: 07/06/2018




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

                                                                              FILED
                                   No. 15-41034                            July 6, 2018
                                 Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk


UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

HECTOR ALEXANDER CABRERA,

                                                Defendant−Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 2:15-CR-198-1




 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

      Hector Cabrera was convicted of being unlawfully present in the United
States after removal and was sentenced to a 38-month term of imprisonment.


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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. 15-41034

On appeal, he challenged the district court’s application of an eight-level
aggravated-felony enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (2014).
Cabrera also contended that the court erred by entering a judgment reflecting
that he was convicted and sentenced under 8 U.S.C. § 1326(b)(2). We affirmed.
United States v. Cabrera, 671 F. App’x 352 (5th Cir. 2016) (per curiam).

      In Bello v. United States, 138 S. Ct. 1976 (2018), the Court granted cer-
tiorari, vacated, and remanded this matter and others for reconsideration in
light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In Dimaya, the Court held
that the residual clause of 18 U.S.C. § 16(b) is unconstitutionally vague. See
id. at 1210, 1223. At our request, the parties provided supplemental letter
briefs in which they largely agree as to the effect of Dimaya.

      In Beckles v. United States, 137 S. Ct. 886, 895 (2017), the Court held
“that the advisory Sentencing Guidelines are not subject to a vagueness
challenge.” “[T]he Guidelines’ continued use of § 16(b) for definitional purposes
is constitutionally inoffensive,” so “§ 16(b) remains incorporated into the
advisory-only Guidelines for definitional purposes.” United States v. Godoy,
890 F.3d 531, 540 (5th Cir. 2018). It follows that, as the parties acknowledge,
the unconstitutionality of § 16(b)’s residual clause does not render erroneous
the district court’s application of the § 2L1.2(b)(1)(C) enhancement. See id.

      “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.” Godoy, 890 F.3d at 541−42. In sentencing Cabrera under
§ 1326(b)(2), which provides for a maximum sentence of 20 years for defen-
dants previously convicted of an aggravated felony, the district court necessar-
ily relied on the now-unconstitutional definition of “aggravated felony” in
§ 16(b). See id. at 542. Thus, as the parties agree, Dimaya renders erroneous


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                                 No. 15-41034

the designation, in the written judgment, that Cabrera was convicted and sen-
tenced under § 1326(b)(2).

      The remaining question is whether we should remand. Cabrera main-
tains that a remand for correction is the proper remedy, but the government
asserts that we may modify the judgment without remanding. The govern-
ment is correct: Although we could remand, courts of appellate jurisdiction are
permitted to “affirm, modify, vacate, set aside or reverse any judgment, decree,
or order of a court lawfully brought before it for review.” 28 U.S.C. § 2106.
Indeed, in a recent appeal similarly affected by Dimaya, we reformed the judg-
ment to correct an erroneous reference to § 1326(b)(2). See Godoy, 890 F.3d
at 542.

      Accordingly, the judgment is MODIFIED to reflect that Cabrera was
convicted and sentenced according to 8 U.S.C. § 1326(a) and (b)(1), and the
judgment as modified is AFFIRMED.          Because Cabrera’s release date is
imminent, the mandate shall issue forthwith.




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