     Case: 15-40958      Document: 00514811566        Page: 1     Date Filed: 01/28/2019




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                     No. 15-40958                   United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                                                     January 28, 2019
UNITED STATES OF AMERICA,
                                                                      Lyle W. Cayce
              Plaintiff - Appellee                                         Clerk


v.

OSCAR VIRGILIO PERDOMO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
JAMES E. GRAVES, Jr., Circuit Judge:
      Oscar Virgilio Perdomo (Perdomo) pleaded guilty to illegal reentry
following deportation. On appeal, Perdomo argued that the district court erred
by entering a judgment reflecting that he was convicted under 8 U.S.C.
§ 1326(b)(2) rather than § 1326(b)(1). 1 Perdomo maintained he did not have a
qualifying conviction for an aggravated felony because his prior conviction in



      1  Section 1326(b)(2) subjects an alien to a maximum term of imprisonment of 20 years
if his prior removal was after a conviction for an aggravated felony. Section 1326(b)(1)
subjects an alien to a maximum 10 years of imprisonment if he was removed after conviction
of certain misdemeanors or of a non-aggravated felony.
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                                 No. 15-40958
Arkansas for residential burglary did not qualify as the enumerated offense of
burglary under 8 U.S.C. § 1101(a)(43)(G), nor did it qualify under §
1101(a)(43)(F)’s definition of aggravated felony, which incorporated the “crime
of violence” definition from 18 U.S.C. § 16. Perdomo argued that Arkansas
residential burglary did not have as an element the “use of force” required
under § 16(a), and that § 16(b) was unconstitutional on its face. Because at the
time we first considered Perdomo’s argument United States v. Gonzalez-
Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), cert. granted, judgment
vacated, 138 S. Ct. 2668 (2018) compelled a determination that § 16(b) was not
unconstitutionally vague, we affirmed Perdomo’s judgment on that basis and
did not address Perdomo’s other arguments.
      Perdomo petitioned for review before the Supreme Court, who
subsequently issued its decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018),
holding that § 16(b) was unconstitutionally vague and abrogating Gonzalez-
Longoria. The Supreme Court then granted Perdomo’s petition, vacated this
court’s judgment, and remanded the case for further consideration in light of
Dimaya.
      On remand, the parties’ filed a joint 28j letter, agreeing that in light of
Dimaya, Perdomo’s prior conviction for residential burglary in Arkansas is not
a qualifying aggravated felony under § 1101(a)(43)(F) as it does not have the
requisite element of force under § 16(a) and § 16(b) is no longer constitutional
in this context. The parties alerted us that the remaining issue in this matter—
whether Arkansas’ residential burglary offense qualifies as a generic “burglary
offense” under § 1101(a)(43)(G)—was being squarely addressed in a separate
case before the Supreme Court, United States v. Sims, 854 F.3d 1037 (8th Cir.
2017), cert. granted, 138 S.Ct. 1592 (2018), and that the resolution of Sims
would fully resolve the issue in this case. The parties agreed that if the issue
were resolved “against” Perdomo, the district court’s judgment should be
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                                 No. 15-40958
affirmed; however, if the issue were resolved in Perdomo’s favor, the case
should be remanded to the district court for reformation of the judgment. They
requested we hold this case in abeyance pending the resolution of Sims.
      We complied, and the Supreme Court subsequently issued its opinion in
United States v. Stitt, 139 S.Ct. 399 (2018), holding that Arkansas residential
burglary “falls within the scope of generic burglary’s definition.” 139 S.Ct. at
406. Because the Supreme Court’s decision renders Perdomo’s conviction an
aggravated felony, we AFFIRM the district court’s judgment.




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