### 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 WILLET T , 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 superv ised release. On appeal, Perez

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

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . 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: 12/07/2018No. 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 purpos es of convicting , sentencing, and entering judgment against him under § 1326(b) (2)

. Perez

Jimenez based this argument on the Supreme Court’s reasoning in Johnson v. United State s , 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. N one th e less , 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 convicti on 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: 12/07/2018No. 16

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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 , “ i t is well established that courts should correct a forfeited plain error t hat affects substantial rights if the error seriously affects the fairness, integrity or public repu tation 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, h e has shown clear er r or in the judgment o f 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 designatin g 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: 12/07/2018No. 16

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4 judgment could have collateral consequences.” United States v. Ovalle

- Garcia , 868 F.3d 313, 314 (5th Cir. 2017) (citing Unit ed 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, w e REFORM the district court’s judgment to reflect conviction and sentencing under 8 U.S.C. § 1326(b)(1 ). The judgment is AFFIRM ED as modified. Case: 16-10135 Document: 00514752485 Page: 4 Date Filed: 12/07/2018