     Case: 16-40086      Document: 00514541983         Page: 1    Date Filed: 07/05/2018




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


                                     No. 16-40086
                                                                              FILED
                                                                           July 5, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

OSCAR REYNA-LOZANO,

              Defendant – Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:15-CR-1272-1



                        ON PETITION FOR REHEARING

Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*


       The petition for panel rehearing is GRANTED. The prior opinion, United
States v. Reyna-Lozano, 689 F. App’x 380 (5th Cir. 2017), is withdrawn, and
the following opinion is substituted.
       In a panel decision filed May 19, 2017, we affirmed application of a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-40086    Document: 00514541983     Page: 2     Date Filed: 07/05/2018


                                 No. 16-40086

sentencing enhancement that treated Texas burglary of a habitation as a
“crime of violence.” That decision relied on United States v. Uribe, 838 F.3d
667 (5th Cir. 2016), which held that the Texas burglary statute is divisible and
thus subject to the modified categorical approach. Reyna-Lozano filed a timely
motion for rehearing asking that the panel hold the petition pending the
outcome of the then-pending petition for rehearing en banc in United States v.
Herrold, No. 14-11317. The en banc court granted rehearing in Herrold and
overruled Uribe. 883 F.3d 517 (5th Cir. 2018) (en banc). That means Reyna-
Lozano’s Texas burglary of a habitation should not have resulted in application
of the 16-point “crime of violence” enhancement.
      Reyna-Lozano did not raise this objection in the trial court, so he must
meet the burden of plain-error review. Herrold establishes the sentencing
error. It is a plain or obvious error because Herrold was decided while this
case was still pending appellate consideration. Henderson v. United States,
568 U.S. 266, 279 (2013). The error affected Reyna-Lozano’s substantial rights
because the “crime of violence” enhancement had a significant impact on the
Guidelines range. Molina-Martinez v. United States, 136 S. Ct. 1338 (2016).
That leaves the final question whether the error “seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings.” Olano, 507
U.S. 725, 736 (1993). Prior to the Supreme Court’s recent decision in Rosales-
Mireles, unpublished decisions from this court had reached different answers
on whether Herrold error satisfied this fourth prong of plain error review; it
depended on the particular circumstances of each defendant. Compare United
States v. Hernandez-Saenz, No. 16-10084, 2018 WL 2017920 (5th Cir. Apr. 27,
2018) (vacating sentence), with United States v. Fuentes-Canales, No. 15-
41476, 2018 WL 2331765 (5th Cir. May. 22, 2018) (not vacating sentencing),
petition for panel rehearing filed (June 5, 2018).        In Rosales-Mireles, the


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                                No. 16-40086

Supreme Court held that an error affecting the Guidelines range “ordinarily
will satisfy Olano’s fourth prong.” 138 S. Ct. 1897, 1908 (2018). The error in
this case had a much greater impact on the sentence than the erroneous double
counting of one criminal history point in Rosales-Mireles. Id. at 1905. And no
“countervailing factors” have been identified that might overcome application
of the ordinary rule. We thus conclude that Reyna-Lozano has met his burden
of establishing all four requirements of plain error review. We also grant
Reyna’s motion to issue the mandate forthwith.
      The sentence is VACATED and this case REMANDED for resentencing.




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