     Case: 15-20755      Document: 00514557194        Page: 1     Date Filed: 07/16/2018




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


                                   No. 15-20755
                                                                                FILED
                                                                            July 16, 2018
                                 Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

DANIEL GARCIA BELLO, also known as Daniel Bello,
also known as Daniel Garcia, also known as Daniel Belo,
also known as Daniel R. Garcia, also known as Daniel Rodrigo Garcia,
also known as Daniel Garcia-Belo,

                                                Defendant−Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 4:15-CR-423-1




ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 15-20755    Document: 00514557194     Page: 2   Date Filed: 07/16/2018


                                 No. 15-20755

      Daniel Garcia Bello pleaded guilty of illegal reentry by a previously
deported alien after an aggravated felony conviction and was sentenced to
31 months in prison. On appeal, Bello contended that the district court erred
by classifying his prior conviction of evading arrest as an aggravated felony
under 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(C). Bello claimed that
the conviction was not a crime of violence under 18 U.S.C. § 16(b) and thus not
an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). This court affirmed in
United States v. Bello, 670 F. App’x 354 (5th Cir. 2016). The Supreme Court
granted certiorari, vacated, and remanded for further consideration in light of
Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Bello v. United States, 138 S. Ct.
1976 (2018). In Dimaya, 138 S. Ct. at 1210, 1223, the Court held that the
residual clause of § 16(b) is unconstitutionally vague.

      At our request, the parties provided a joint supplemental letter in which
they agreed as to the effect of Dimaya. The parties acknowledge that the un-
constitutionality of § 16(b)’s residual clause does not render erroneous the dis-
trict court’s application of the § 2L1.2(b)(1)(C) enhancement. See United States
v. Godoy, 890 F.3d 531, 540 (5th Cir. 2018). The parties also agree that Bello’s
predicate Texas conviction of evading arrest by motor vehicle does not consti-
tute an aggravated felony for purposes of § 1326(b)(2). As a result, the judg-
ment must be reformed to the extent it states that Bello was convicted and
sentenced under § 1326(b)(2) for “[i]llegal re-entry by a previously deported
alien after an aggravated felony conviction.”

      Accordingly, we REMAND for correction of the judgment to show convic-
tion under § 1326(b)(1) instead of § 1326(b)(2). In all other respects, the judg-
ment is AFFIRMED.




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