IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41027

Summary Calendar

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

EDUARDO DAVILA-MEDINA, also known as Jose Alberto Diaz-Flores, also 

known as Jose Luis Torres-Medina, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:15-CR-1599-1

Before DAVIS, HAYNES, and GRAVES, Circuit Judges.

PER CURIAM:*

Eduardo Davila-Medina was convicted of illegal reentry into the United 

States after removal on a plea of guilty. He was sentenced to a term of 

imprisonment of 77 months to run concurrently with his state conviction. He 

was ultimately sentenced to four years in Texas state prison, where he is 

 

* 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

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currently housed, based upon a conviction for failing to register as a sex 

offender. 

Davila-Medina appeals his sentence, calculated under the 2015 

Sentencing Guidelines, challenging three aspects of his sentencing guidelines 

calculation: (1) the conclusion that his prior Texas conviction of burglary of a 

habitation qualified as a crime of violence for purposes of the U.S.S.G. § 

2L1.2(b)(1)(A)(ii); (2) the conclusion that his prior convictions of sexual assault 

qualified as crimes of violence for purposes of § 2L1.2(b)(1)(A)(ii); and (3) 

assessment of one point in his criminal history score under § 4A1.1(e), based 

upon his second sexual assault conviction. The first alleged error was 

preserved; the other two are subject to plain error review. Puckett v. United 

States, 556 U.S. 129, 135 (2009)

The Government concedes, and we agree, that under our precedent in 

United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), petition for 

cert. filed (Apr. 18, 2018) (No. 17-1445), his burglary conviction (under Texas 

Penal Code § 30.02) is not a crime of violence. The Government concedes, and 

we also agree, that under our precedent in United States v. Hernandez-Avila, 

892 F.3d 771 (5th Cir. 2018), his sexual assault of a child convictions (under 

Texas Penal Code §22.011(a)(2)(A)) are not crimes of violence. 

Thus, the district court committed clear error as to the burglary 

conviction enhancement and error that was plain under the alternative ground 

of sexual assault of a child. Because the latter error was not preserved, we 

must analyze the two other prongs of plain error: whether it affected his 

substantial rights and whether we should exercise our discretion to correct the 

error. Puckett, 556 U.S. at 135.

In Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016)), the 

Supreme Court explained that “most often” an error in calculating the 

sentencing guidelines range will be sufficient to meet the third prong of the 

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plain error analysis. Here, the guidelines range would have been lower (33-41 

months v. 77-96 months) absent the enhancement. Davila-Medina was 

sentenced at the bottom of the guidelines range the district court concluded 

was applicable, and the judge gave no indication that the range did not affect 

his analysis. We conclude, therefore, that the third prong is met.

Turning to the fourth prong, the Supreme Court recently clarified that, 

in the area of sentencing guidelines calculation errors, an error that resulted 

in a higher guidelines range generally establishes a reasonable probability that 

the defendant will serve a sentence greater than needed to fulfill the objectives 

of incarceration, reasoning that “[t]he risk of unnecessary deprivation of liberty 

particularly undermines the fairness, integrity, or public reputation of judicial 

proceedings” because mistakes under the Guidelines are the result of judicial 

error and can easily be addressed through resentencing. Rosales-Mireles v. 

United States, 138 S. Ct. 1897, 1907-08 (2018). The Government offers no 

arguments1 to support a conclusion that this case presents a situation “where 

countervailing factors [should] satisfy the court of appeals that the fairness, 

integrity, and public reputation of the proceedings will be preserved absent 

correction.” Id. at 1908. Indeed, its original brief relied upon the now-reversed 

decision of our court in Rosales-Mireles, and its supplemental briefing does not 

address the fourth prong at all. Of course, on remand, the district court can 

consider the nature of Davila-Medina’s previous offenses and determine that 

an upward variance or departure is appropriate. We offer no opinion in that 

regard, instead entrusting that consideration to the discretion of the district 

 

1 The Government instead argues that we should await the results of the pending 

certiorari petition in Herrold. Even where the Supreme Court has granted certiorari, this 

court is bound by its own precedent, unless and until that precedent is altered by a decision 

of the Supreme Court. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986). This 

appeal has already been pending for two years. We thus deny the Government’s motion to 

hold this appeal in abeyance pending the final results in Herrold.

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court. Similarly, because the enhancement errors are sufficient to require 

reversal and remand of the sentence, we need not address the criminal history 

point issue as the district court can consider that issue in the first instance on 

remand. 

Accordingly, we AFFIRM Davila-Medina’s conviction and VACATE his 

sentence. We REMAND for resentencing in light of this opinion.

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