     Case: 17-40241      Document: 00514786380         Page: 1    Date Filed: 01/08/2019




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

                                    No. 17-40241                            FILED
                                  Summary Calendar                    January 8, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLOS ALBERTO VASQUEZ-NAVARRO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-935-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Carlos Alberto Vasquez-Navarro appeals the 70-month sentence
imposed following his guilty plea conviction of illegal reentry. Relying on
United States v. Herrold, 883 F.3d 517, 529, 541 (5th Cir. 2018) (en banc),
petitions for cert. filed (Apr. 18, 2018) (No. 17-1445) and (May 21, 2018) (No.
17-9127), he argues that the district court erred by applying a 16-level
adjustment pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) because his two


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40241     Document: 00514786380      Page: 2    Date Filed: 01/08/2019


                                  No. 17-40241

prior felony burglary convictions under Texas Penal Code § 30.02(a) are not
categorically crimes of violence. The Government correctly concedes that the
district court’s application of the 16-level adjustment is erroneous in light of
Herrold.   See United States v. Godoy, 890 F.3d 531, 536 (5th Cir. 2018).
Accordingly, the Government raises the following arguments to preserve them
for further review: (1) that, under the categorical approach, § 30.02(a) is a
crime of violence because all of its subsections match the generic burglary
offense and, alternatively, (2) that the Texas burglary statute is divisible and
that Vasquez-Navarro’s prior convictions are crimes of violence under the
modified categorical approach.
      The Government has made no attempt to show that the error in this case
was harmless. See United States v. Martinez-Romero, 817 F.3d 917, 924 (5th
Cir. 2016). Instead the Government asks that we hold this case in abeyance
pending the certiorari determinations in Herrold and in a similar case, United
States v. Quarles, 850 F.3d 836 (6th Cir.), petition for cert. filed (Nov. 24, 2017)
(17-778). We decline to do so. The sentence in this case is vacated and the
matter is remanded for resentencing in light of Herrold.
      SENTENCE VACATED AND REMANDED FOR RESENTENCING.
MOTION DENIED.




                                         2
