     Case: 16-11733      Document: 00514570172         Page: 1    Date Filed: 07/25/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                  United States Court of Appeals

                                      No. 16-11733
                                                                           Fifth Circuit

                                                                         FILED
                                                                     July 25, 2018

UNITED STATES OF AMERICA,                                           Lyle W. Cayce
                                                                         Clerk
              Plaintiff - Appellee

v.

HUMBERTO SANTOS-GABINO,

              Defendant – Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-141-1


Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Humberto Santos-Gabino was convicted of illegal reentry under 8 U.S.C.
§ 1326(a). The district court concluded that Santos-Gabino’s prior conviction
for “sexual assault of a child” under Texas law, TEX. PENAL CODE
§ 22.011(a)(2), met the definition of an “aggravated felony” under 8 U.S.C.
§ 1326(b)(2), which enhanced the statutory maximum for Santos-Gabino’s
illegal reentry conviction and was reflected in his judgment. Recent Supreme
Court cases make clear that Texas’s “sexual assault of a child” does not meet


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11733       Document: 00514570172          Page: 2     Date Filed: 07/25/2018



                                       No. 16-11733
the requirements of § 1326(b)(2), 1 which the Government concedes. But the
Government also argues that rather than remand, we should reform the
district court’s judgment to reflect conviction and sentencing under
§ 1326(b)(1).
       Section 1326(b)(1) applies whenever the defendant has previously been
convicted of “three or more misdemeanors involving drugs, crimes against the
person, or both, or a felony (other than an aggravated felony).” Santos-Gabino
has not contested (and we agree) that “sexual assault of a child” satisfies the
requirements of § 1326(b)(1). See United States v. Fuentes, 506 F. App’x 330,
331 (5th Cir. 2013) (per curiam) (concluding that “felony” in § 1326(b)(1)
reaches “offense[s] punishable by more than one year in prison”); 2 TEXAS
PENAL CODE § 12.33 (punishing second degree felonies with a minimum of two
years in prison); id. §22.011 (classifying sexual assault of a child as a second
degree felony). We conclude that it is appropriate to remand solely for the
purpose of having the district court reform the judgment.                      We therefore
REMAND the case to the district court for the limited purpose of REFORMING
the judgment to reflect conviction under § 1326(b)(1).                   We DISMISS the
remainder of the appeal, which challenged only Santos-Gabino’s now fully-
served sentence, as moot. 3


       1 See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572–73 (2017) (holding that
“statutory rape offenses focused solely on the age of the participants” do not meet “the generic
federal definition of ‘sexual abuse of a minor’” unless the crime defines victims to be “less
than 16”); United States v. Hernandez-Avila, 892 F.3d 771 (5th Cir. 2018) (per curiam)
(holding that the same Texas statute does not meet nearly identical Sentencing Guidelines’
requirements in light of Esquivel-Quintana); see also Sessions v. Dimaya, 138 S. Ct. 1204
(2018) (holding that 18 U.S.C. § 16(b) is unconstitutionally vague and therefore a defendant’s
crime of conviction cannot satisfy § 1326(b)(2) through it).
       2 “An unpublished opinion issued after January 1, 1996 is not controlling precedent,
but may be persuasive authority. 5th Cir. R. 47.5.4.” Ballard v. Burton, 444 F.3d 391, 401 &
n.7 (5th Cir. 2006).
       3See United States v. Clark, 193 F.3d 845, 847–48 (5th Cir. 1999) (per curiam); see
also United States v. Heredia-Holguin, 823 F.3d 337, 343 (5th Cir. 2016) (en banc).
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