     Case: 16-11653      Document: 00514601558         Page: 1    Date Filed: 08/15/2018




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

                                                                                 FILED
                                    No. 16-11653                           August 15, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE LUIS RAMIREZ GALVAN, also known as Jose Ramirezgalvan, also
known as Jose Ramirez, also known as Vicente Ortega-Ramirez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-47-1




 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jose Luis Ramirez Galvan was convicted of illegally reentering the
United States after he had been removed and was sentenced to 24 months of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11653     Document: 00514601558       Page: 2   Date Filed: 08/15/2018


                                   No. 16-11653

imprisonment. On appeal, he argued that his 2011 Texas conviction for sexual
assault of a child did not constitute an aggravated felony such that it was
improper to convict and sentence him under 8 U.S.C. § 1326(b)(2).
We affirmed. United States v. Galvan, 699 F. App’x 314, 315 (5th Cir. 2017).
        In Ramirez Galvan v. United States, 138 S. Ct. 2676 (2018), the Supreme
Court     granted   certiorari,   vacated,   and   remanded     this   matter    for
reconsideration in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In
Dimaya, the Court held that the residual clause of 18 U.S.C. § 16(b) is
unconstitutionally vague. See id. at 1210, 1223.
        In response to our request for supplemental briefing, the parties have
provided a joint supplemental letter brief in which they have agreed on the
effect of Dimaya.     They correctly agree that, in sentencing Galvan under
§ 1326(b)(2), the district court necessarily and erroneously relied upon § 16(b)’s
now-unconstitutional residual clause.        See id. at 1210, 1223.    The parties
further agree that we should reform the judgment to reflect that Galvan was
sentenced pursuant to § 1326(b)(1). See United States v. Godoy, 890 F.3d 531,
542 (5th Cir. 2018). Although Galvan has now been released from prison, his
release does not moot the appeal. See Alwan v. Ashcroft, 388 F.3d 507, 511
(5th Cir. 2004).
        Accordingly, the judgment is REFORMED to reflect that Galvan was
convicted and sentenced according to § 1326(b)(1), and the judgment as
modified is AFFIRMED.




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