     Case: 15-40442      Document: 00514611402         Page: 1    Date Filed: 08/22/2018




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

                                    No. 15-40442                                 FILED
                                  Summary Calendar                         August 22, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff – Appellee,

v.

JOSE PRUDENCIO CANALES-BONILLA,

                                                 Defendant – Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-721-1



ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jose Prudencio Canales-Bonilla pleaded guilty to being an alien
unlawfully present in the United States following removal, in violation of
8 U.S.C. § 1326 of the Immigration and Nationality Act (“INA”). The district
court’s judgment reflects that Canales-Bonilla was convicted and sentenced


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40442     Document: 00514611402     Page: 2   Date Filed: 08/22/2018


                                  No. 15-40442

under § 1326(b)(2), which applies when the alien’s removal was subsequent to
a conviction for an aggravated felony. On appeal, Canales-Bonilla contended
that the district court committed reversible plain error in classifying his 1997
conviction for rape of a spouse under California Penal Code § 262 as an
aggravated felony. He argued that his 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) of the INA.
      In response, the Government filed an unopposed motion for summary
affirmance, asserting that Canales-Bonilla’s arguments challenging the
constitutionality of § 16(b) were foreclosed by our decision in United States v.
Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), abrogated by
Sessions v. Dimaya, ___ U.S. ___ , 138 S.Ct. 1204 (2018). We granted the
Government’s motion. United States v. Canales-Bonilla, 664 F. App’x 403 (5th
Cir. 2016). However, the Supreme Court subsequently granted certiorari,
vacated the judgment, and remanded this case to us for further consideration
in light of its holding in Dimaya. In Dimaya, the Supreme Court held that
§ 16(b) is unconstitutionally vague. We have held that as a result of Dimaya,
a § 16(b) offense may not be used as the basis for a conviction under
§ 1326(b)(2). See United States v. Godoy, 890 F.3d 531, 542 (5th Cir. 2018).
      The parties have submitted supplemental letter briefs at our request
addressing what action we should now take. Canales-Bonilla does not seek to
undo his 41-month sentence. However, he asserts that Dimaya requires that
we remand his case to the district court for correction of the judgment to reflect
conviction under § 1326(b)(1), which prohibits illegal reentry following
deportation subsequent to “a felony (other than an aggravated felony).” He




                                        2
     Case: 15-40442       Document: 00514611402         Page: 3     Date Filed: 08/22/2018


                                       No. 15-40442

contends that his 1997 conviction for spousal rape under California law 1 can
no longer be classified as an aggravated felony under Dimaya and, thus, his
conviction for illegal reentry following deportation subsequent to an
aggravated felony under § 1326(b)(2) cannot stand.
       The Government acknowledges that Dimaya precludes the classification
of Canales-Bonilla’s prior conviction as an aggravated felony under § 16(b) as
incorporated into § 1326(b)(2) through § 1101(a)(43)(F).                The Government,
however, asserts that his conviction for spousal rape nonetheless is an
aggravated felony under a different subsection of the INA, § 1101(a)(43)(A),
which specifically enumerates “rape” as an aggravated felony.                            The
Government further points out that our review of Canales-Bonilla’s challenge
to the classification of his prior conviction is for plain error. It contends that if
there was any error, the error was not clear or obvious.
       In Perez-Gonzalez v. Holder, 667 F.3d 622, 625 (5th Cir. 2012), we noted
that the INA does not define the term “rape.” We determined, however, that
when Congress added “rape” to the list of aggravated felonies in the INA, it
“seem[ed] to have stayed close to the common-law definition [of rape] despite
the fact that rape crimes defined by the states [had] a broader reach.” Id. at
626. We further determined that “[a]t common law, ‘rape’ meant the ‘unlawful
sexual intercourse committed by a man with a woman not his wife through
force and against her will . . . .” Id. (quoting BLACK’S LAW DICTIONARY (9th ed.
2009) (emphasis added)). Because the victim of the California offense of rape
of a spouse may be the wife of the perpetrator, the district court erred in
treating Canales-Bonilla’s prior conviction for spousal rape as an aggravated



       1Section 262 of California’s Penal Code prohibits “[r]ape of a person who is the spouse
of the perpetrator,” while Section 261 prohibits rape of “a person not the spouse of the
perpetrator.”


                                              3
    Case: 15-40442     Document: 00514611402     Page: 4   Date Filed: 08/22/2018


                                  No. 15-40442

felony under the INA. Moreover, the error was plain or obvious in light of our
decision in Perez-Gonzalez.
      The district court’s misclassification of Canales-Bonilla’s prior conviction
substantially affected his rights, as it is the direct and sole cause of the error
in the judgment. The error seriously affected the fairness, integrity, or public
reputation of judicial proceedings because of the significant collateral
consequences that can flow from the aggravated felony classification. United
States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017). Specifically, a
conviction under § 1326(b)(2) is itself an aggravated felony, which would
render Canales-Bonilla “permanently inadmissible to the United States.” Id.
      Accordingly, we REMAND to the district court for the limited purpose of
correcting the judgment to reflect conviction under § 1326(b)(1) instead of
§ 1326(b)(2). In all other respects, the judgment is AFFIRMED.




                                        4
