     Case: 17-20486        Document: 00514594578          Page: 1     Date Filed: 08/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                        No. 17-20486                             FILED
                                                                           August 10, 2018
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

                                                    Plaintiff-Appellee

v.

JOSE RAMIRO DELEON-FACUNDO,

                                                    Defendant-Appellant


                     Appeal from the United States District Court
                          for the Southern District of Texas
                                USDC No. 4:17-CR-94


Before GRAVES and COSTA, Circuit Judges, and BENNETT, District
Judge.*
PER CURIAM: **
      Jose Ramiro Deleon-Facundo pleaded guilty to illegal reentry after
having been deported and convicted of indecency with a child involving
sexual contact in Texas state court.              When entering judgment, the court
classified the offense as illegal reentry following a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Additionally,


      *   District Judge for the Southern District of Texas, sitting by designation.

      ** 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not be published and is not precedent except under the limited circumstances set forth in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: 17-20486      Document: 00514594578   Page: 2   Date Filed: 08/10/2018


                                 No. 17-20486


the court applied an eight-level enhancement under the 2015 Sentencing
Guidelines pursuant to a finding that Deleon-Facundo’s Texas state court
conviction was a “crime of violence” under 18 U.S.C. § 16(b), which is
incorporated into the definition of an aggravated felony in 8 U.S.C. §
1101(a)(43), which is in turn cross-referenced by the 2015 Sentencing
Guidelines. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.3(A)
(U.S. SENTENCING COMM’N 2015). Pursuant to this enhancement, the district
court sentenced Deleon-Facundo within the calculated guideline range to 23
months of imprisonment and no supervised release.              Deleon-Facundo
requests that this Court alter the judgment because he believes it
erroneously lists his conviction as illegal reentry following an aggravated
felony. Additionally, Deleon-Facundo requests that we remand this case for
resentencing as his prior conviction was erroneously classified as an
aggravated felony under the 2015 Sentencing Guidelines.         Specifically, he
argues that his prior Texas conviction does not constitute a “crime of
violence” as defined in 18 U.S.C. § 16, and thus does not constitute an
“aggravated felony” under 8 U.S.C. § 1101(a)(43)(F) or §2L1.2 of the 2015
Sentencing Guidelines because 18 U.S.C. § 16(b) is unconstitutionally vague.
The characterization of a prior conviction as an aggravated felony is a
question of law that is reviewed de novo if the issue is preserved, as it was
here. See United States v. Narez-Garcia, 819 F.3d 146, 149 (5th Cir.), cert.
denied, 137 S. Ct. 175 (2016).     Likewise, this Court reviews the district
court’s application of the Sentencing Guidelines de novo. United States v.
Jackson, 220 F.3d 635, 636 (5th Cir. 2000). The Court will address each of
these issues in turn.
      As to the judgment, this Court acknowledges that the judgment the
district court entered was consistent with the state of our law at that time.



                                       2
    Case: 17-20486     Document: 00514594578       Page: 3      Date Filed: 08/10/2018


                                   No. 17-20486


We had rejected a vagueness challenge to 18 U.S.C. § 16(b). United States v.
Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), vacated, 138 S.Ct.
2668 (2018). Since that time however, the Supreme Court has taken the
opposing view and held that § 16(b) violates the Due Process Clause.
Sessions v. Dimaya, 138 S. Ct. 1204 (2018).            As such, treating Deleon-
Facundo’s state conviction as an aggravated felony because of this now-
invalid “crime of violence” statute is inappropriate and this Court must find
that the district court erred in classifying Deleon-Facundo’s conviction as
illegal reentry following an aggravated felony based on those grounds.
      In regard to the application of the sentencing guidelines, Deleon-
Facundo’s argument is essentially the same. He argues that because the
Supreme Court has held in Dimaya that section 16(b) violates the Due
Process   Clause,    the   eight   level   §   2L1.2(b)(1)(C)    aggravated     felony
enhancement in the 2015 Sentencing Guidelines is also inappropriate as that
section cross-references the unconstitutionally vague definition in § 16(b).
However, the Supreme Court in Beckles v. United States, 137 S. Ct. 886, 895
(2017), held that the advisory Sentencing Guidelines are not subject to a
vagueness challenge. As such, the Supreme Court’s ruling in Dimaya does
not affect the appropriateness of the eight-level § 2L1.2(b)(1)(C) aggravated
felony enhancement in the 2015 Sentencing Guidelines.               Accordingly, the
Court finds that the district court’s application of the sentencing guidelines
was appropriate in this case, and upholds the decision in this regard.
      The judgement is AFFIRMED IN PART and REMANDED for
correction of the judgment consistent with this opinion.




                                           3
