     Case: 17-20127      Document: 00514608912         Page: 1    Date Filed: 08/21/2018




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

                                                                                FILED
                                    No. 17-20127                          August 21, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE RAMON ZUNIGA, also known as Josue Ararel Zuniga-Zaragoza, also
known as Jose Ramon Zuniga-Garcia,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-90-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Jose Ramon Zuniga pleaded guilty to illegal reentry after deportation
following a felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(1).
Zuniga’s sentence was calculated using the 2014 version of the Sentencing
Guidelines to avoid an ex post facto violation. Zuniga received an eight-level
aggravated felony enhancement under U.S.S.G. § 2L1.2(b)(1)(C) based on his



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20127     Document: 00514608912      Page: 2   Date Filed: 08/21/2018


                                  No. 17-20127

prior Texas conviction for burglary of a building in violation of Texas Penal
Code § 30.02(a). The district court sentenced Zuniga within the guidelines
range to 39 months of imprisonment. Zuniga filed a timely notice of appeal.
      Zuniga concedes that he did not object to the district court’s application
of the eight-level aggravated felony enhancement and that this court’s review
is limited to plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
He maintains that the district court’s application of the enhancement under
§ 2L1.2(b)(1)(C) (2014) based on his prior Texas conviction for burglary of a
building constituted plain error in light of this court’s decision in United States
v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), petition for cert. filed
(Apr. 18, 2018) (No. 17-1445), and the Supreme Court’s decision in Sessions v.
Dimaya, 138 S. Ct. 1204 (2018).
      Under the version of § 2L1.2(b)(1)(C) used to sentence Zuniga, the term
“aggravated felony” was defined by reference to 8 U.S.C. § 1101(a)(43).
§ 2L1.2(b)(1)(C), comment. (n.3(A)) (2014).      As relevant in Zuniga’s case,
§ 1101(a)(43) defines “aggravated felony” to include “[a] burglary offense for
which the term of imprisonment [is] at least one year.” § 1101(a)(43)(G). This
court applies the categorical approach set out in Taylor v. United States, 495
U.S. 575 (1990) to determine whether a prior state conviction qualifies as an
aggravated felony under § 1101(a)(43). United States v. Sanchez-Rodriguez,
830 F.3d 168, 171-72 (5th Cir. 2016).
      The state court judgment does not specify which subsection of § 30.02(a)
formed the basis of Zuniga’s conviction, and this court is without a means of
narrowing Zuniga’s conviction because, following Herrold, the Texas burglary
statute is indivisible and the modified categorical approach does not apply. See
883 F.3d at 530. Because § 30.02(a)(3) is broader than the Taylor definition of
generic burglary and because § 30.02(a) is indivisible, Zuniga’s Texas burglary



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                                       No. 17-20127

conviction does not qualify as a “burglary offense” under § 1101(a)(43)(G) for
purposes of the aggravated felony enhancement. See id. at 537.
      Even though Zuniga’s prior conviction for Texas burglary is not
categorically a “burglary offense” under § 1101(a)(43)(G), he is still subject to
the aggravated felony enhancement if his prior conviction constitutes a “crime
of violence” as defined under 18 U.S.C. § 16. 1 See § 1101(a)(43)(F). This court
has previously held that Texas burglary of a building is not a crime of violence
under § 16(a) because “the state need not prove the use, attempted use, or
threatened use of physical force against the person or property of another.”
United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995), overruled
on other grounds as recognized in United States v. Turner, 305 F.3d 349, 350-
51 (5th Cir. 2002). Zuniga argues that his Texas burglary conviction cannot be
a crime of violence under § 16(b) because the Supreme Court struck down that
provision in Dimaya.
      In Dimaya, the Supreme Court invalidated as unconstitutionally vague
the definition of “crime of violence” in § 16(b)’s residual clause for essentially
the same reasons that the Court invalidated 18 U.S.C. § 924(e)(2)(B)(ii)’s
similar residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015).
See Dimaya, 138 S. Ct. at 1211, 1223. After the completion of briefing in
Zuniga’s case, however, this court decided United States v. Godoy, 890 F.3d 531
(5th Cir. 2018).



      1   Under § 16, “crime of violence” is defined as:
              (a) an offense that has as an element the use, attempted use, or
              threatened use of physical force against the person or property
              of another, or
               (b) any other offense that is a felony and 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.


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                                  No. 17-20127

      The court clarified in Godoy that Texas burglary could, despite Johnson
and Dimaya, support the eight-level enhancement under § 2L1.2(b)(1)(C) as an
aggravated felony. Id. at 536-41. The court determined that the Supreme
Court’s holding in Dimaya that § 16(b) was unconstitutionally vague did not
“forbid using § 16(b) to calculate recommended sentences under the nonbinding
Guidelines.” Id. at 541.
      The Godoy court also addressed Herrold and concluded that its holding
had no effect on existing caselaw holding that a conviction under § 30.02(a) is
categorically a crime of violence under § 16(b). Id. at 540-41. As the court
explained, “nothing in our caselaw holding that Texas burglary qualifies as a
crime of violence under § 16(b) turns on either a distinction between §
30.02(a)(1) and (a)(3) or a belief that those provisions capture only generic
burglary.” Id. at 541.
      This court’s decision in Godoy makes clear that the Texas offense of
burglary of a building under § 30.02(a) is a crime of violence under § 16(b) and
thus an aggravated felony under § 2L1.2(b)(1)(C) (2014). See 890 F.3d at 536-
41. As such, the district court did not err plainly or otherwise in applying
§ 2L1.2(b)(1)(C)’s aggravated felony enhancement in Zuniga’s case.           The
judgment of the district court is AFFIRMED.




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