                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 13-10637
                Plaintiff-Appellant,
                                                     D.C. No.
                     v.                           5:11-cr-00900-
                                                      EJD-1
 MARCO HERNANDEZ-LARA,
             Defendant-Appellee.                     OPINION


        Appeal from the United States District Court
          for the Northern District of California
        Edward J. Davila, District Judge, Presiding

                  Submitted March 29, 2016*
                     Pasadena, California

                      Filed March 29, 2016

    Before: Stephen Reinhardt, Ferdinand F. Fernandez,
          and Richard R. Clifton, Circuit Judges.

                       Per Curiam Opinion




  *
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2            UNITED STATES V. HERNANDEZ-LARA

                           SUMMARY**


                           Criminal Law

    The panel affirmed a sentence for illegal reentry in a case
in which the government challenged the district court’s
conclusion that the defendant’s prior burglary conviction
under California Penal Code § 459 did not qualify as a “crime
of violence” as defined in 18 U.S.C. § 16(b).

    Applying Dimaya v. Lynch, 803 F.3d 110 (9th Cir. 2015),
the panel held that the definition of crime of violence
that appears in § 16(b), as incorporated in U.S.S.G.
§ 2L1.2(b)(1)(C), is void for vagueness.


                             COUNSEL

Merry Jean Chan, Assistant United States Attorney; Brian
Stretch, Acting United States Attorney, and Barbara J.
Valliere, Chief, Appellate Division, Assistant United States
Attorney, United States Attorney’s Office for the Northern
District of California, San Francisco, California, for Plaintiff-
Appellant.

Alfredo M. Morales, Law Offices of Morales & Leaños, San
Jose, California, for Defendant-Appellee.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
           UNITED STATES V. HERNANDEZ-LARA                    3

                          OPINION

PER CURIAM:

    Appellant United States of America appeals the sentence
imposed on appellee Marco Hernandez-Lara following his
conviction for illegal reentry under 8 U.S.C. § 1326.
Specifically, the government contends that the district court
miscalculated the United States Sentencing Guidelines range
applicable to Hernandez because the district court concluded
that Hernandez’s 2009 burglary conviction under California
Penal Code § 459 did not qualify as a “crime of violence” as
defined in 18 U.S.C. § 16(b). After the government filed its
appeal, however, we held in a different context that the
definition of a crime of violence that appears in § 16(b) is
unconstitutionally vague. See Dimaya v. Lynch, 803 F.3d
1110 (9th Cir. 2015). Because we are bound by Dimaya’s
holding, and because the government offers the same
arguments in favor of § 16(b)’s constitutionality that we
rejected in that decision, we hold that § 16(b), as incorporated
in U.S.S.G. § 2L1.2(b)(1)(C), is void for vagueness.

    1. U.S.S.G. § 2L1.2(b)(1)(C) imposes an 8-level
enhancement on a defendant convicted of illegal reentry if
“the defendant previously was deported, or unlawfully
remained in the United States, after . . . a conviction for an
aggravated felony.” Section 2L1.2 defines “aggravated
felony” by reference to 8 U.S.C. § 1101(a)(43), which
includes numerous offenses. U.S.S.G. § 2L1.2, cmt. 3(A).
One of these offenses is a “crime of violence (as defined in
section 16 of Title 18 . . . ).” 8 U.S.C. § 1101(a)(43)(F).
Here, the government argued to the district court that
Hernandez’s burglary conviction qualified as a “crime of
violence” under § 16(b), which the statute defines as an
4            UNITED STATES V. HERNANDEZ-LARA

“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,” 18 U.S.C. § 16(b). The district court disagreed,
concluding that burglary under California Penal Code § 459
“is not a crime of violence under section 16(b).” It then
sentenced the defendant to 24 months of incarceration, and
the government appealed.

    After the government appealed this decision, the United
States Supreme Court decided Johnson v. United States,
135 S. Ct. 2551 (2015). Johnson held that language similar
to § 16(b), the Armed Career Criminal Act’s so-called
“residual clause”1 definition of a “violent felony,” is
unconstitutionally vague. 135 S. Ct. at 2557; see also
Dimaya, 803 F.3d at 1115. We deferred submission pending
this court’s decision in Dimaya (which addressed Johnson’s
impact on § 16(b)), and ordered supplemental briefing once
Dimaya became final.

    2. In Dimaya, we relied on Johnson to hold that
§ 16(b)—the exact same definition of a “crime of violence”
at issue in this case—was void for vagueness. Dimaya,
803 F.3d at 1115. We stated that the “residual clause”
declared unconstitutional in Johnson and § 16(b), although
not identical, are both “subject to the same constitutional
defects.” Id. Here, the government seeks to distinguish
Johnson based on the insignificant differences between the


    1
     The “residual clause” defines a “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year . . . that . . . is
burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury
to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
           UNITED STATES V. HERNANDEZ-LARA                  5

“residual clause” and § 16(b)—arguments that we explicitly
rejected in Dimaya, id. at 1117–19. Indeed the government
admits as much, and offers no basis upon which to distinguish
the application of § 16(b) in Dimaya and its application here.
We, too, see no reason why Dimaya does not control this
case. We therefore hold that § 16(b), as incorporated in
U.S.S.G. § 2L1.2(b)(1)(C), is unconstitutionally vague, and
affirm the sentence.

   AFFIRMED.
