IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10135

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ISRAEL PEREZ-JIMENEZ, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:14-CR-269-1

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:*

Israel Perez-Jimenez pleaded guilty to illegal reentry after removal 

pursuant to 8 U.S.C. §1326(a) and (b)(2). He was sentenced to 30 months of 

imprisonment with no supervised release. On appeal, Perez-Jimenez argued 

for the first time that the district court erred by characterizing his Texas 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 7, 2018

Lyle W. Cayce

Clerk

 Case: 16-10135 Document: 00514752485 Page: 1 Date Filed: 12/07/2018
No. 16-10135

2

convictions of burglary of a building and burglary of a vehicle as aggravated 

felonies under 8 U.S.C. § 1101(a)(43)(F) for the purposes of convicting, 

sentencing, and entering judgment against him under § 1326(b)(2). PerezJimenez based this argument on the Supreme Court’s reasoning in Johnson v. 

United States, 135 S. Ct. 2551 (2015), arguing the definition of a crime of 

violence under 18 U.S.C. § 16(b), as incorporated by reference into 

§1101(a)(43)(F), was unconstitutionally vague on its face. Perez-Jimenez’s 

argument was foreclosed at the time by our decision in United States v. 

Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), cert. granted,

judgment vacated, 138 S. Ct. 2668 (2018), which was later abrogated 

by Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding § 16(b) 

unconstitutionally vague). Perez-Jimenez petitioned for certiorari before the 

Supreme Court, which granted his petition, vacated this court’s judgment, and 

remanded for further consideration in light of Dimaya. 

On remand, the parties agree that Perez-Jimenez’s challenge to the 

length of his sentence is now moot given that Perez-Jimenez has served his 

sentence and been removed from the United States. However, Perez-Jimenez 

argues his judgment of conviction should nevertheless be reformed to reflect 

conviction under § 1326(b)(1) rather than § 1326(b)(2). The Government argues 

that Perez-Jimenez did not raise this argument in his initial brief and 

therefore has waived the issue. Nonetheless, the Government urges that if this

court were to find Perez-Jimenez properly raised the issue, the court should, 

“at the very most,” reform the judgment to reflect conviction under §1326(b)(1). 

In reviewing Perez-Jimenez’s initial brief, we conclude he adequately 

raised the issue of § 16(b)’s unconstitutionality and that his prior Texas 

burglary convictions did not qualify as aggravated felonies under § 16(b) or 

otherwise. However, because Perez-Jimenez raised the issue for the first time 

 Case: 16-10135 Document: 00514752485 Page: 2 Date Filed: 12/07/2018
No. 16-10135

3

on appeal, we review his judgment of conviction under § 1326(b)(2) for plain 

error. See United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018). Plain 

error review consists of four prongs, the first three of which are: 1) there must 

be an error or defect; 2) the error must be clear or obvious; and 3) the error 

must have affected substantial rights. Puckett v. United States, 556 U.S. 129, 

135 (2009). If the first three prongs are met, “it is well established that courts 

should correct a forfeited plain error that affects substantial rights if the error 

seriously affects the fairness, integrity or public reputation of judicial 

proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906 (2018)

(internal quotation marks omitted). The decision whether to correct the error 

rests within the discretion of the reviewing court. Puckett, 556 U.S. at 135.

We are satisfied that Perez-Jimenez has met the standard for plain error 

review. First, he has shown clear error in the judgment of conviction under 

§1326(b)(2). Section 1326(b)(2) penalizes reentry by an alien deported after 

prior conviction of an aggravated felony and allows a sentence of imprisonment 

up to twenty years. Section 1326(b)(1) penalizes reentry by an alien deported 

after conviction of certain misdemeanors or of a non-aggravated felony, with a 

maximum 10 years of imprisonment. Dimaya precludes relying on § 16(b)’s 

definition of crime of violence as the basis for designating Perez-Jimenez’s 

burglary convictions as aggravated felonies, meaning it was plain error to 

convict him under § 1326(b)(2).1 Further, such a conviction affects his 

substantial rights. This court has previously concluded that an improper 

conviction under § 1326(b)(2), even of a defendant who has served his sentence 

and been deported, is neither harmless nor moot “because the erroneous 

 

1 Both parties appear to agree that Perez-Jimenez’s conviction under § 1326(b)(2) is 

clear error after Dimaya and that Perez-Jimenez’s burglary convictions do not otherwise 

qualify as aggravated felonies.

 Case: 16-10135 Document: 00514752485 Page: 3 Date Filed: 12/07/2018
No. 16-10135

4

judgment could have collateral consequences.” United States v. Ovalle-Garcia, 

868 F.3d 313, 314 (5th Cir. 2017) (citing United States v. Briceno, 681 F. App’x 

334 (5th Cir. 2017)). Specifically, a conviction under § 1326(b)(2) is itself an 

aggravated felony that would render a defendant permanently inadmissible to 

the United States. Id. (quoting Briceno, 681 F. App’x at 334)). Even if the 

conviction did not implicate Perez-Jimenez’s substantial rights, we would still 

conclude this is an instance where reformation of the judgment is proper. See

United States v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009);

United States v. Reyes-Hernandez, 727 F. App’x 90, 90 (5th Cir. 2018)

(unpublished); United States v. Hermoso, 484 F. App’x 970, 972–73 (5th Cir. 

2012) (unpublished); United States v. Ayala-Nunez, 714 F. App’x 345, 345, 351–

52 (5th Cir. 2017) (unpublished); United States v. Pineda-Oyuela, 644 F. App’x 

309, 310 (5th Cir. 2016) (unpublished). 

Accordingly, we REFORM the district court’s judgment to reflect 

conviction and sentencing under 8 U.S.C. § 1326(b)(1). The judgment is 

AFFIRMED as modified.

 Case: 16-10135 Document: 00514752485 Page: 4 Date Filed: 12/07/2018