     Case: 16-40529      Document: 00514535771         Page: 1    Date Filed: 06/29/2018




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

                                    No. 16-40529                             FILED
                                  Summary Calendar                       June 29, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITES STATES OF AMERICA,

               Plaintiff - Appellee

v.

JUAN MANUEL RAMIREZ-VILLALZANA,

               Defendant – Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-847-1


                   ON PETITION FOR REHEARING EN BANC

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

       Treating this petition for rehearing en banc as a petition for panel
rehearing, it is GRANTED.           The prior opinion, United States v. Ramirez-
Villalzana, 689 F. App’x 352 (2017), is withdrawn, and the following opinion is
substituted.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40529    Document: 00514535771     Page: 2   Date Filed: 06/29/2018


                                 No. 16-40529

      In a panel decision filed May 18, 2017, we affirmed application of a
sentencing enhancement that treated Texas burglary of a habitation as a
“crime of violence.” That decision relied on United States v. Uribe, 838 F.3d
667 (5th Cir. 2016), which held that the Texas burglary statute is divisible and
thus subject to the modified categorical approach. Ramirez-Villalzana filed a
timely motion for rehearing en banc asking the court to overrule Uribe’s
divisibility analysis. The petition noted that an earlier petition raising the
same issue was then pending in United States v. Herrold, No. 14-11317. The
en banc court granted rehearing in Herrold, so we held this petition pending
the outcome of the en banc proceeding. Herrold overruled Uribe and held that
the burglary statute is not divisible. 883 F.3d 517 (5th Cir. 2018) (en banc).
That means Ramirez-Villalzana’s burglary of a habitation should not have
resulted in application of the 16-point crime of violence enhancement. The
sentence is VACATED and this case REMANDED for resentencing.




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