     Case: 16-50993      Document: 00514577054         Page: 1    Date Filed: 07/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-50993                                FILED
                                  Summary Calendar                          July 30, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUIS DANIEL VALLE-JAIMES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:15-CR-980-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Luis    Daniel    Valle-Jaimes       appeals    the    77-month        sentence            of
imprisonment imposed following his guilty plea conviction for being found
unlawfully present in the United States following deportation. Although Valle-
Jaimes did not file a timely notice of appeal, the time limit is not jurisdictional,
and the Government has waived the issue. See United States v. Martinez, 496
F.3d 387, 388-89 (5th Cir. 2007).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-50993   Document: 00514577054      Page: 2    Date Filed: 07/30/2018


                                  No. 16-50993

       Citing United States v. Herrold. 883 F.3d 517 (5th Cir. 2018) (en banc),
petition for cert. filed (Apr. 18, 2018) (No. 17-1445), Valle-Jaimes argues that
the district court erred in applying the 16-level enhancement to his base
offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) based on his prior
Texas burglary conviction because the Texas burglary statute is categorically
broader than the generic definition of the enumerated crime of violence, a
burglary of a dwelling. The Government concedes the error but preserves its
right to seek further possible review of the Herrold decision.
       Because Valle-Jaimes did not raise this argument in the district court,
we review for plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009). To satisfy that standard, Valle-Jaimes must show a (1) forfeited error
(2) that is clear or obvious and (3) that affects his substantial rights. See id. If
he makes such a showing, we may correct the error but only if (4) it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.
       Valle-Jaimes has shown that the district court committed clear or
obvious error in applying the 16-level enhancement based on his prior Texas
burglary conviction. See Herrold, 883 F.3d at 520-37, 541-42; United States v.
Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc); United States v.
Ortega-Gonzaga, 490 F.3d 393, 394-95 (5th Cir. 2007). Further, he has shown
that the error affected his substantial rights because the correct sentencing
guidelines range is significantly lower. See Molina-Martinez v. United States,
136 S. Ct. 1338, 1345, 1347 (2016). Because the error resulted in a higher
guidelines range and outweighs any other countervailing factors, we exercise
our discretion to correct the plain error. See Rosales-Mireles v. United States,
No. 16-9493, 2018 WL 3013806, at *10 (U.S. June 18, 2018).




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    Case: 16-50993    Document: 00514577054    Page: 3   Date Filed: 07/30/2018


                                No. 16-50993

      Accordingly, the sentence is VACATED, and the case is REMANDED to
the district court for resentencing. The Government’s motion to stay further
proceedings pending the petition for certiorari filed in Herrold, is DENIED.
See United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013).




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