     Case: 16-10135      Document: 00514752485         Page: 1    Date Filed: 12/07/2018




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

                                                                               FILED
                                      No. 16-10135                      December 7, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


              Plaintiff - Appellee

v.

ISRAEL PEREZ-JIMENEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-269-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*

       Israel Perez-Jimenez pleaded guilty to illegal reentry after removal
pursuant to 8 U.S.C. §1326(a) and (b)(2). He was sentenced to 30 months of
imprisonment with no supervised release. On appeal, Perez-Jimenez argued
for the first time that the district court erred by characterizing his Texas



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10135
convictions of burglary of a building and burglary of a vehicle as aggravated
felonies under 8 U.S.C. § 1101(a)(43)(F) for the purposes of convicting,
sentencing, and entering judgment against him under § 1326(b)(2). Perez-
Jimenez based this argument on the Supreme Court’s reasoning in Johnson v.
United States, 135 S. Ct. 2551 (2015), arguing the definition of a crime of
violence under 18 U.S.C. § 16(b), as incorporated by reference into
§1101(a)(43)(F), was unconstitutionally vague on its face. Perez-Jimenez’s
argument was foreclosed at the time by our decision in United States v.
Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), cert. granted,
judgment vacated, 138 S. Ct. 2668 (2018), which was later abrogated
by Sessions   v.   Dimaya,   138    S.   Ct.   1204   (2018)   (holding   §   16(b)
unconstitutionally vague). Perez-Jimenez petitioned for certiorari before the
Supreme Court, which granted his petition, vacated this court’s judgment, and
remanded for further consideration in light of Dimaya.

      On remand, the parties agree that Perez-Jimenez’s challenge to the
length of his sentence is now moot given that Perez-Jimenez has served his
sentence and been removed from the United States. However, Perez-Jimenez
argues his judgment of conviction should nevertheless be reformed to reflect
conviction under § 1326(b)(1) rather than § 1326(b)(2). The Government argues
that Perez-Jimenez did not raise this argument in his initial brief and
therefore has waived the issue. Nonetheless, the Government urges that if this
court were to find Perez-Jimenez properly raised the issue, the court should,
“at the very most,” reform the judgment to reflect conviction under §1326(b)(1).

      In reviewing Perez-Jimenez’s initial brief, we conclude he adequately
raised the issue of § 16(b)’s unconstitutionality and that his prior Texas
burglary convictions did not qualify as aggravated felonies under § 16(b) or
otherwise. However, because Perez-Jimenez raised the issue for the first time
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                                     No. 16-10135
on appeal, we review his judgment of conviction under § 1326(b)(2) for plain
error. See United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018). Plain
error review consists of four prongs, the first three of which are: 1) there must
be an error or defect; 2) the error must be clear or obvious; and 3) the error
must have affected substantial rights. Puckett v. United States, 556 U.S. 129,
135 (2009). If the first three prongs are met, “it is well established that courts
should correct a forfeited plain error that affects substantial rights if the error
seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906 (2018)
(internal quotation marks omitted). The decision whether to correct the error
rests within the discretion of the reviewing court. Puckett, 556 U.S. at 135.

      We are satisfied that Perez-Jimenez has met the standard for plain error
review. First, he has shown clear error in the judgment of conviction under
§1326(b)(2). Section 1326(b)(2) penalizes reentry by an alien deported after
prior conviction of an aggravated felony and allows a sentence of imprisonment
up to twenty years. Section 1326(b)(1) penalizes reentry by an alien deported
after conviction of certain misdemeanors or of a non-aggravated felony, with a
maximum 10 years of imprisonment. Dimaya precludes relying on § 16(b)’s
definition of crime of violence as the basis for designating Perez-Jimenez’s
burglary convictions as aggravated felonies, meaning it was plain error to
convict him under § 1326(b)(2). 1 Further, such a conviction affects his
substantial rights. This court has previously concluded that an improper
conviction under § 1326(b)(2), even of a defendant who has served his sentence
and been deported, is neither harmless nor moot “because the erroneous


      1  Both parties appear to agree that Perez-Jimenez’s conviction under § 1326(b)(2) is
clear error after Dimaya and that Perez-Jimenez’s burglary convictions do not otherwise
qualify as aggravated felonies.

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                                 No. 16-10135
judgment could have collateral consequences.” United States v. Ovalle-Garcia,
868 F.3d 313, 314 (5th Cir. 2017) (citing United States v. Briceno, 681 F. App’x
334 (5th Cir. 2017)). Specifically, a conviction under § 1326(b)(2) is itself an
aggravated felony that would render a defendant permanently inadmissible to
the United States. Id. (quoting Briceno, 681 F. App’x at 334)). Even if the
conviction did not implicate Perez-Jimenez’s substantial rights, we would still
conclude this is an instance where reformation of the judgment is proper. See
United States v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009);
United States v. Reyes-Hernandez, 727 F. App’x 90, 90 (5th Cir. 2018)
(unpublished); United States v. Hermoso, 484 F. App’x 970, 972–73 (5th Cir.
2012) (unpublished); United States v. Ayala-Nunez, 714 F. App’x 345, 345, 351–
52 (5th Cir. 2017) (unpublished); United States v. Pineda-Oyuela, 644 F. App’x
309, 310 (5th Cir. 2016) (unpublished).

      Accordingly, we REFORM the district court’s judgment to reflect
conviction and sentencing under 8 U.S.C. § 1326(b)(1). The judgment is
AFFIRMED as modified.




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