United States v. Hector Cabrera

Case: 15-41034 Document: 00514544296 Page: 1 Date Filed: 07/06/2018

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

FILED No. 15-41034 July 6, 2018 Summary Calendar Lyle W. Cayce Clerk

UNITED STATES OF AMERICA,

Plaintiff−Appellee, versus

HECTOR ALEXANDER CABRERA,

Defendant−Appellant.

Appeal from the United States District Court for the Southern District of Texas No. 2:15-CR-198-1

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

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

Hector Cabrera was convicted of being unlawfully present in the United States after removal and was sentenced to a 38-month term of imprisonment.

• • 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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No. 15-41034

On appeal, he challenged the district court’s application of an eight-level aggravated-felony enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (2014). Cabrera also contended that the court erred by entering a judgment reflecting that he was convicted and sentenced under 8 U.S.C. § 1326(b)(2). We affirmed. United States v. Cabrera, 671 F. App’x 352 (5th Cir. 2016) (per curiam).

In Bello v. United States, 138 S. Ct. 1976 (2018), the Court granted cer- tiorari, vacated, and remanded this matter and others 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. At our request, the parties provided supplemental letter briefs in which they largely agree as to the effect of Dimaya.

In Beckles v. United States, 137 S. Ct. 886, 895 (2017), the Court held “that the advisory Sentencing Guidelines are not subject to a vagueness challenge.” “[T]he Guidelines’ continued use of § 16(b) for definitional purposes is constitutionally inoffensive,” so “§ 16(b) remains incorporated into the advisory-only Guidelines for definitional purposes.” United States v. Godoy, 890 F.3d 531, 540 (5th Cir. 2018). It follows that, as the parties acknowledge, the unconstitutionality of § 16(b)’s residual clause does not render erroneous the district court’s application of the § 2L1.2(b)(1)(C) enhancement. See id.

“While Dimaya does not forbid using § 16(b) to calculate recommended sentences under the nonbinding Guidelines, we recognize that Dimaya very clearly speaks to situations where a sentencing maximum or minimum is statutorily fixed.” Godoy, 890 F.3d at 541−42. In sentencing Cabrera under § 1326(b)(2), which provides for a maximum sentence of 20 years for defen- dants previously convicted of an aggravated felony, the district court necessar- ily relied on the now-unconstitutional definition of “aggravated felony” in § 16(b). See id. at 542. Thus, as the parties agree, Dimaya renders erroneous

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the designation, in the written judgment, that Cabrera was convicted and sen- tenced under § 1326(b)(2).

The remaining question is whether we should remand. Cabrera main- tains that a remand for correction is the proper remedy, but the government asserts that we may modify the judgment without remanding. The govern- ment is correct: Although we could remand, courts of appellate jurisdiction are permitted to “affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review.” 28 U.S.C. § 2106. Indeed, in a recent appeal similarly affected by Dimaya, we reformed the judg- ment to correct an erroneous reference to § 1326(b)(2). See Godoy, 890 F.3d at 542.

Accordingly, the judgment is MODIFIED to reflect that Cabrera was convicted and sentenced according to 8 U.S.C. § 1326(a) and (b)(1), and the judgment as modified is AFFIRMED. Because Cabrera’s release date is imminent, the mandate shall issue forthwith.