PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17
- 4778

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. ROBERTO MORENO PENA , a/k/a Alberto Zapata Sierra , Defendant

- Appellant

.
Appeal from the United States District Court for the District of South Carolina , at Charleston

. Patrick Michael Duffy, Senior District Judge . ( 2:16

- cr
- 00865

- PMD

- 1 )
Argued : December 10, 2019 D ecided: March 11, 20 20 Amended: March 1 1 , 2020

Before DIAZ and QUATTLEBAUM , Circuit Judges , and M ax O. COGBURN , United States District Judge for the Western District of North Carolina, sitting by designation.
Affirmed in part, vacated and remanded in part by published opinion. Judge Quattlebaum wrote the opinion in which Judge Diaz and Judge Cogburn joined

.

ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Marshall Taylor Austin, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.2 QUATTLEBAUM, Circuit Judge: Roberto Moreno Pena (“Pena”) was sentenced to 24 month s in prison f or illegally reentering the United States subsequent to conviction for an aggravated felony, in violation
of 8 U.S.C. § 1326(a) and (b)(2). In appealing that sentence, he raises two primary issues. First, Pena appeals the classification of a 1989 Texas burglary conviction as an aggravated felony f or purposes of 8 U.S.C. § 1326(b), which sets out penalties for aliens who have reentered the United States after removal subsequent to conviction for certain crimes. Second, Pena appeals the district court’s use of the Sentencing Guidelines in effect at t he time of his sentencing because he contends they are more punitive than the version in effect
at the time he committed the offense

. For the reasons set forth below, we affirm in part,
and we vacate and remand in part for resentencing consistent with this opinion.

I. We begin with a review of 8 U.S.C. § 1326, the statute under which Pena was charged, pled guilty and was sentenced. Title 8 U.S.C. § 1326 prohibits the unauthorized reentry of an alien who has been previously deported from the United States . As a general
matter, 8 U.S.C. § 1326(a) impos es a fine and /or imprisonment for up to two years for an alien who has illegally reentered the country . But that sentence can be increased based on the alien’s prior criminal conduct in the United States. S ubs ection (b) (1) imposes a fine and/or imprisonment for not more than 10 years for an alien “ whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony ). ” 8 U.S.C.3 § 1326 ( b)(1). S ubsection (b)(2) i mposes a fine and/or imprisonment for not more than 20
years for an alien “ whose removal was subsequent to a conviction for commission of an aggravated felony .” 8 U.S.C. § 1326 ( b ) (2)

. 1

II. Against that backdrop, we turn to the facts relevant to this appeal. In 1990, Pena was removed from the United States to Mexico, following a 19 89 Texas conviction for burglary of a habitation. After he again reentered the country illegally , he was convicted of possession of heroin. That led to a second removal in 2002

. Pena returned illegally for the
third time and was later arrested for driving without a license and under the influence. Following that arrest , Pena was charged with illegal r eentry after deportation subsequent to a conviction for an aggravated felony , in violation of 8 U.S.C. § 1326(a) and (b)(2). The indictment charged that Pena unlawfully entered and was found in the United States without express consent of the proper author ities. The sentence associated with this offense
is at issue here.
W hile represented by counsel, Pena pled guilty . D uring his plea hearing, the district

court informed Pena that one of the elements of the offense was a previous convict ion of

a n “aggravated felony , ” which was satisfied by his 1989 Te xas burglary conviction

. The district court accepted his guilty plea.

1 A defendant who commits an offense under 8 U.S.C. § 1326 triggers the sentencing guidelines at U.S.S.G. § 2L1.2(b) , which provides sentencing enhancements for certain aggravating factors.4 Subsequently, t he United States Probation Office prepared a Presentence Report ( “ PSR ” ) that calculated Pena’s offense level under the 2015 United States Sentencing
Guidelines (“U.S.S.G.”) M anual , the manual in effect w hen Pena committed the offense. Based on the 2015 Manual, the Probation Office recommended a base offense of 8 with a
4

- level increase for a felony conviction under U.S.S.G. § 2L1.2(b)(1)(D)

. 2 After other adjustments, the Probation Office recommended a total offense level of 10 which, w ith
Pena’s c riminal h istory c ategory of III , result ed in an advisory range of 10 to 16 months ’ imprisonment.
Pena objected to the PSR , arguing the 1989 Texas burglary conviction was not an aggravated felon y. He also filed a Motion to Strike Surplusage or in the Alternative to
Withdraw Plea , claim ing that he had not been convicted of an “aggravated felony

. ” Just p rior to sentencing , the Probation Office issued a new PSR using the 2016
Guidelines M anual , the manual in effect at the time of sentencing, rather than the 2015
Guidelines used for the first PSR

. In th e new PSR, t he Probation Office recommended a
base offense level of 8, wit h a 10

- level increase under U.S.S.G. § 2L 1.2 (b)(3)(A) because Pena engaged in criminal conduct that resulted in a felony after he was ordered to be deported from the United States for the first time. These calculations , after other adjustments for accept ance of responsibility , led to a total offense level of 15, a criminal history category of III and an advisory guidelines imprisonment range of 24 to 30 months.

2 The initial PSR does not appear to apply the crime of violence enhancement relative to Pena’s 1989 burglary conviction, which, if applied , could have increased the offense level by at least 12 points.5 At sentencing , Pena , still represented by counsel , object ed to the new PSR

. Relevant
to this a ppeal, he argued that the 1989 Texas burglary did not qualify as an aggravated felony. Therefore, Pena argued he should not be subjected to the enhanced penalties
of § 1326(b)(2). He also argued that the 2015 Guidelines Manual should be used to evaluate the sentence because it was less punitive than the 2016 Guidelines M anua l

. T he dist rict court overruled Pena’s objection that Texas burglary did not qualify as an aggravated felony. In making this determination, the dist rict court applied the “modified categorical approach .” Using that approach, the court found Texas burglary qualified as both a theft offense and a burglary offense under 8 U.S.C. § 1101(a)(43)( G ) , which are potential forms of an aggravated felony under th e Immigration and Nationality Act (“INA”). Having identified an aggravated felony under 8 U.S.C. § 1101(a) of the INA, the
district court proceeded with sentencing in light of 8 U.S.C. § 1326 , which once again sets
for th the penalties for aliens who re e nter the United States after removal subsequent to a
conviction of certain crimes.
The district court stated: “I would end up giving the same sentence under either of
the statutory scheme s .” J.A. 49. It then adopted the calculations under the 2016 Guideli ne s Manual, which, as described above, yield ed a range of imprisonment of 24

– 30 months. The
district court sentenced Pena to 24 months , indicating that but for Pena’s counsel ’s argument for a downward departure , presumably regarding his lengthy sentence for possession of a controlled substance , it would have sentenced him to 30 months

. After j udgment was entered , Pena timely filed his Notice of Appeal on December 15, 2017.6 I II. Before addressing Pena’s arguments on appeal, we note our standard of review. Whether a crime is an aggravated felony is a question of law this Court reviews de novo.
Castendet

- Lewis v. Sessions , 855 F.3d 253, 260 (4th Cir. 2017). In evaluating whether the district court properly applied the advisory sentencing guidelines, we review the district
court’s factual findings for clear error and its legal conclusions de novo

. United States v. Layton , 564 F.3d 330, 334 (4th Cir. 2009)

. We review a sentence imposed by a district
court for reasonableness , considering both procedural and substantive components

. See
Gall v. United States , 552 U.S. 38, 51 (2007 ) ; United States v. Abu Ali , 528 F.3d 210, 260 (4th Cir. 2008). Our jurisdiction to review is authorized by 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

I V

. With those standards in mind, we turn to Pena’s arguments on appeal. Pena first
argu es that his 1989 conviction for Texas burglary did not qualify as an aggravated felony.
The INA, at 8 U

. S.C. § 1101 (a)(43), lists twenty

- one categories of criminal conduct that qualify as an “aggravated felony

. ” Two of the categories pertinent here are found in subsections (F) and (G). Subsection (F) refers to “ a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year .” 8 U.S.C. § 1101 (a)(43) (F)

. Subsection (G) refers to

“ a theft offense (including receipt of stolen property) or burglary offense for which the term of imprison ment [is] at least one year. ” 8 U.S.C. § 1101 (a)(43)(G)

.7 Originally , the government argued that Texas burglary qualified as an aggravated felony under the federal criminal code ’s definition of crime of violence as defined at
18 U.S.C. § 16 (b) , which is known as the residual clause. H owever, Sessions v. Dimaya , 138 S. Ct. 1204 (2018) , issued after the government’s original argument , held that the residual clause of § 16(b) as incorporated into the INA’s definition of “aggravated felony”

was unco nstitutionally vague . In response, the government shifted its position. It now
argues the Texas burglary statute constitutes a theft or burglary offense under
8 U.S.C. § 1101 (a) (43)(G)

. 3 But Pena challenges this position as well , claim ing Texas burglary does not qualify as a theft offense or burglary offens e
. I n evaluat ing Pena’s argument , we must first determine the proper framework for our analysis. More specifically, we must decide whether to employ the “categorical approach” or the “modified categori cal approach” in our analysis. Then, once we make that determination, we must apply the proper framework to consider whether Texas burglary qualifies as a burglary offense for purposes of the INA

. A. We begin with the question of whether we are to apply the categorical approach or the modified categorical approach in resolving this appeal. Under the categorical approach ,

we focus not on the actual facts involved in the 1989 case. Moncrieffe v. Holder , 569 U.S.

3 It also contends Pena’s conduct constituted an attempted aggravated felony under 8 U.S.C. § 1101(a)(43) (U) , although that is not relevant to the issues we consider today.8 184, 190 (2013). 4 Instead, we examine whether the elements of the crime of conviction (here Texas burglary) sufficiently match the elements of a listed offense (here “burglary,” in a generic sense )

. Gonzales v. Duenas

- Alvarez , 549 U.S. 183, 185

– 86 (2007)

. And when we refer to “elements,” we mean the “constituent parts of a crime’s legal definition” that must be proven by the prosecution beyond a reasonable doubt to sustain a conviction.
Mathis v. United States , 136 S. Ct. 2243, 2248 (2016) (internal citation and quotation marks omitted). Under this approach, Texas burglary qualifies as generic burglary , and thus an aggravated felony, if its elements are the same as, or narrower than the elements of generic burglary

. See i d. If Texas burglary, however, covers more conduct , or is broader than generic burglar y , then it does not match and th u s will not qualify as a n aggravated felony predicate offense

. This is so regardless of whether the defendant’s actual conduct factually
fit s with in the parameters of the generic offense.

4 As we again consider the Alice in Wonderland path known as the categorical approach, see United States v. Battle , 927 F.3d 160, 164 n.2 (4th Cir. 2019) , we note that it is not a default rule of statutory construction. We apply it, as we held in United States v. Simms , 914 F.3d 229, 240 (4th Cir. 2019), when compelled to do so by the text of the applicable statute. When the text of a statute, on the other h and, refers expressly or implicitly to conduct, the circumstance

- specific approach applies. See Nijhawan v. Holder , 557 U.S. 29 (2009) (applying the “circumstance

- specific approach” to 8 U.S.C. § 1101(a)(43)(M)(i) of the INA ) ; United States v. Price , 777 F.3d 700 (4th Cir. 2015) (applying the “ circumstance

- specific approach” in deciding that the defendant was subject to the registration requirement under the Sex Offender Registration and Notification Act (“SORNA”))

.9 T his categorical analysis is more straightforward where a statute sets forth a single,
or “indivisible , ” set of elements to define a single crime. A court compares the elements of
the statute of conviction and the e lements of the generic offense to see if they match.
But some statutes have a divisible structure in that a single statute may list alternative sets of elements, thereby setting out several crimes within a single statute.
Mathis , 136 S. Ct. at 2249. In th is situation, t he sentencing co urt must determine which of
the alternative elements formed the crime for which the defendant was convicted. Id. To
do this , the sentencing court look s to a limited class of documents such as an indictment, jury instructions or a plea colloquy to determine the crime of convict ion , and then compar es that crime with the relevant generic offense. Id. ; see also Shepard v. United States , 544 U.S. 13, 26 (2005) ; United States v. Covington , 880 F.3d 129, 132 (4th Cir. 2018). This analysis is called the modified categorical approach. Determining whether a statute is indivisible, in which case the categori c al approach is applied, or divisible, in which case the modified categorical approach is applied, requires

a careful review of the pertinent statute. I f the statute contains a list of “ diverse means of satisfying a single element of a single crime” or “spells out various factual ways of committing some component of the offense ” it lists the various means of committing a single offense and is thus is indivisible. Mathis , 136 S. Ct. at 2249

. On the other hand, if
the statute set s out potential offense elements in the alternative, it in effect lists “several
different crimes , ” and is thus divisible. Omargharib v. Holder , 775 F.3d 192, 197

– 98 (4th Cir. 2014).10 The district court concluded the Texas statute at issue in Pena’s 1989 burglary
conviction involved potential offense elements in the alternative and was thus divisible

. Accordingly, it applied the modified categorical approach. Pena challenges this conclusion , claim ing the Texas statute contained a list of means of carrying out a single offense and
was thus indivisible , requiring application of the categorical approach. Recently, t he Fifth Circuit, in United States v. Herrold , 883 F.3d 517 (5th Cir. 2018) (en banc) (“ Herrold I”), addressed the question of whether the Texas burglary statute was divisible or indivisible. In an en banc decision, it held that Texas Penal Code § 30.02(a)(1 ) and (3) are not distinct offenses, but instead separate means of committing one burglary
offense

. Herrold I, 883 F.3d at 529. After canvassing several state court cases , the Fifth
Circuit concluded that “Texas courts have repeatedly held that a jury need not unanimously agree on whether Texas Penal Code § 30.02(a)(1) or (a)(3) applies in order to sustain a conviction for burglary

. ” 5 Id. at 523. Thus, “[u]nder Mathis , when state law does not require jury unanimity between statutory alternatives, the alternatives cannot be divisible.”
Id

. As a result, in H e rrold I, the Fifth Circuit concluded that the categorical approach was the proper framework for analyzing Texas Pe nal Code § 30.02(a) , and in United States v.
Herrold , 941 F.3d 173, 177 (5th Cir. 2019) (en banc) (“ Herrold II”) , it reinstat ed that

5 For example, in Martinez v. State , the Court of Appeals of Texas address ed the question of whether subsections (a)(1) and (a)(3) of section 30.02 establish separate criminal offenses. After a detailed analysis, the court concluded that the statute did not , noting that the subsections are essentially alternative means for proving a single mens rea element without causing an affront to the jury unanimity requirement. Martinez v. State , 269 S.W.3d 777, 7 83 (Tex. App. 2008)

.11 portion of its decision upon remand from the Supreme Court. We find Herrold I , as reinstated by Herrold II , instructive as it relates to the question of whether the Texas
b urglary statute is indivisible and agree with Pena that the district court erred in applying the modified categorical approach

. 6 Instead, the proper analytical framework is the categorical approach.
B.
Havi ng determined that the categorical approach is the proper analytical framework, we turn to the question of whether Texas burglary is a match with and therefore qualifies

as a burglary offense under the INA

. We begin with the text of both. Under the 1989 Te xas Burglary statute, § 30.02 (a), a person commits an offense if, without the effective consent of the owner, he: (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; o r (2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or (3) enters a building or habitation and commits or attempts to commit a felony or theft.

6 We do not find this conclusion to be in conflict with our decision in United States v. Bonilla , 687 F.3d 188 ( 4th Cir. 2012) , where this Court considered a sentencing enhancement based on a Texas burglary conviction and concluded that a conviction under Texas Penal Code § 30.02(a)(3) subs tantially corresponds to the elements of generic burglary under Taylor v. United States , 495 U.S. 575 (1990) and therefore qualifies as a crime of violence. Bonilla , 687 F.3d at 193. From a divisibility perspective, that case appears to embrace the use of the modified categorical approach in a footnote, but it was decided prior to Descamps v. United States , 570 U.S. 254 (2013) and Mathis , which require courts to assess the divisibility of a statute before proceeding to apply a modified categorical approach. Those case s make clear that the modified approach serves a limited function

— merely effecting the application of the categorical analysis. Descamps , 570 U.S. at 260.12 Tex. Penal Code § 30.02. Next, we t urn to the INA , which does not define “burglary offense

. ” But in determining whether a conviction falls with the scope of a listed offense, we refer to the generic definition of burglary in Taylor v. United States , 495 U.S. 575 (1990)

. See Gonzales , 549 U.S. at 185

– 86 (applying the categorical approach of Taylor to the INA).
Under Taylor , burglary means the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor , 495 U.S. at 598

– 99.
T wo recent Supreme Cour t cases address ing the scope of generic burglary inform our comparison of generic burglary with burglary under the Texas statute. I n Quarles v. United States, 139 S. Ct. 1872 (2019) , the Court concluded that “remaining

- in burglary

. . . when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure” falls within generic burglary. Id

. at 1875 ( emphasis in original ). Then, in United States v. Stitt , 139 S. Ct. 399 (2018) , the Supreme Court

con cluded gen eric burglary includes “ vehicles designed or adapted for overnight use

. ” Stitt , 139 S. Ct. at 407. “ A n offender who breaks into a mobile home, an RV, a camping tent, a vehicle, or another structure that is adapted for or customarily used for lodging runs a similar or greater risk of violent confrontation.” Id . at 406 . These two decisions effectively
elimi nated arguments that Texas Penal Code § 30.02(a)(3) was more broad than generic burglary. Thus, the Fifth Circuit in Herrold II held that the Texas burglary statute fell within the generic definition of burglary.13 Similarly, we conclude that Texas burglary qualifies as generic burglary as defined
in Taylor

. 7 Quarles forecloses any argument that the Texas burglary statute is overbroad
to the extent Pena argues it encompasses circumstances where a defendant develops the intent to commit a crime after an initial entry or initial decision to remain without
authorization. And Stitt undercuts any argument that the statute is overbroad in that it
includes vehicles as part of the definition o f “habitation” under Texas law , a term included in all three subsections of the statute as a locational aspect of the offense

. 8 As the Supreme
Court stated in Taylor and reiterated in Quarles , all that is necessary is that the state statute “substantially correspond s to or is narrower than generic burglary .” Quarles , 139 S. Ct. at
1880. We find that the relevant Texas burglary statute does so here. Thus, although we apply the categorical approach rather than the modified categori c al approach, we affirm the district court in finding that Texas burglary is a burglary offense under 8
U.S.C. § 1101 (a) (43)(G ) and is thus an “aggravated felony” under the INA. Having so found, we need not reach the government’s remaining arguments as to whether the Texas

7 Herrold I and II considered the 2017 version of Texas Penal Code § 30.02(a) , which is slightly different from the 1989 version at issue for purposes of Pena’s case. The 2017 version references a “felony, theft, or an assault,” where the 1989 version references only a “ felony or theft. ” The existence of the additional “assault” language does not change the result for purposes of this analysis.

8 Under Texas state law, the term “habitation” “means a structure or vehicle that is adapted for th e overnight accommodation of persons, and includes: (A) each separately secured or occupied portion of the structure or vehicle; and (B) each structure appurtenant to or connected with the structure or vehicle.” Tex. Penal Code § 30.01 (1990); see also And rus v. State , 495 S.W.3d 300, 304 (Tex. App. 2016).14 burglary statute constitutes a theft or attempted theft offense under
8 U.S.C. § 1101(a)(43)(G ) or (U)

. At oral argument, realizing Dimaya , Quarles , Stitt and Her r old I and II had significantly altered the legal landscape of this case , Pena raised a new argument for the
first time . Pena argued that Texas Penal Code § 30.02(a)(3) is broad er than the generic definition of burglary because the generic definition requires a specific intent to commit a crime that accompanies the entr y whereas § 30.02(a)(3) of the Texas burglary statute does

not. Although an interesting argument, this Court, absent some exceptions not applicable here, will not consider arguments not made in the briefs, but raised instead for the first time at oral argume nt. See Robinson v. Wix Filtration Corp. LLC , 599 F.3d 403, 41 0 n.9 (4th Cir. 2010)

. Therefore, w e decline to consider th is argument.

V.
In addition to his argument about whether his Texas burglary conviction qualifies

as an aggravated felony, Pena claims the district court committed a procedural error in applying the 201 6 Guideline s Manual at sentencing. Pena claims the 2015 Guidelines should have been applied because they are less punitive than the 2016 Guidelines. 9

9 Although the S entencing G uidelines are advisory, d istrict courts must apply the Sentencing Guidelines in effect on the date the defendant is sentenced unless the court determines that doing so would violate the E x P ost F acto C lause of the United States Constitution. Peugh v. United States , 569 U.S. 530, 537

– 38 (2013 ); U.S.S.G. § 1B1.11(a), (b)(1) (2016); U nited States v. Lewis , 606 F.3d 193, 198

– 99 (4th Cir. 2010) (concluding that “ the retroactive application of severity enhancing Guidelines amendments contravenes the Ex Post Facto Clause ” ). “[A]pplying amended sentencing guidelines that increase a15 We normally review a criminal s entence for abuse of discretion. Gall , 552 U.S. at
41. In doing so, we first must examine whether the district court commit ted a significant procedural error, such as improperly calculating the guideline range, treating the Guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors or failing to adequately explain its chosen sentence. United States v. Carter , 564 F.3d 325, 328 (4th Cir.
2009 ). “In assessing whether a district court properly calculated the Guidelines range, including its application of any sentencing enhancements, this Court reviews the district

court ’ s legal conclusions de novo and its factual findings for clear error.” United S tates v.
Horton , 693 F.3d 463, 474 (4th Cir. 2012) (internal quotation marks and alteration omitted). We then consider the substantive reasonableness of the sentence imposed in view of the totality of the circumstances. Gall , 552 U.S. at 51 ; United States v. Savillon

- Matute , 636 F.3d 119, 123 (4th Cir. 2011)

. “Federal sentencing law requires the district judge in every case to impose ‘a sentence sufficient, but not greater than necessary, to comply with’ the purposes of federal sentencing, in light of the G uidelines and other § 3553(a)
factors.” Freeman v. United States , 564 U.S. 522 , 529 (2011) (quoting 18 U.S.C. § 3553 (a)). But we need not conduct this analysis here because, a t oral argument, the government conceded that the 2015 G uidelines applied

. Despite that concession, however, the government maintains the district court’s failure to apply th at Guideline s Manual was

defendant’s recommended sentence can violate the Ex Post Facto C lause, notwithstanding the fact that sentencing courts possess discretion to deviate from the recommended sentencing range.” Peugh v. United States , 569 U.S. at 541

. Pena claims the 2016 Guidelines are more punitive and thus applying them violate s the Ex Post Facto C lause.16 a harmless error. Although we are not bound by the government’s concession of

error , United States v. Boulware , 604 F.3d 832, 837 (4th Cir. 2010) , we see no reason not to proceed to the harmless error analysis. In order to prevail on harmlessness, the government must show that an error did not
affect a defendant ’ s “substantial rights.” United States v. Robinson , 460 F.3d 550, 5 57 (4th
Cir. 2006). A sentencing error is harmless “if the resulting sentence was not longer than that to which [the defendant] would otherwise be subject.” United States v. Mehta , 594 F.3d 277, 283 (4th Cir. 2010) (internal citation and quotation marks omitted). One way that
occurs is where “ the record makes clear that the District Court would have imposed the same sentence under the older, more lenient Guidelines that it imposed under the newer, more punitive ones. ” Peugh v. United State s , 569 U.S. at 55 0 , n.8. Here, t he government relies on the district court ’s statement s at sentencing to support its argument that the erroneous use of the 2016 Guidelines was harmless. The
district court indicated , “as to the statutory penalty being greater under one and lesser under the other, given the guideline ranges that he’s in, that’s not going to affect the Court’s view. I would end up giving the same sentence under either of the statutory schemes.” J.A. 49. Based on that statement, the government contends, Pena would have received the same
sentence under either the 2015 or the 2016 Guidelines.
But th e statement from the district court does not appear to be related to the question
of whether the 2015 or the 2016 Guidelines apply. Instead, it appears to indicate that
whether Pena ’s prior criminal conduct fell within subsection (b)(1) or subsection (b)(2) of 8 U.S.C. § 1326 did not affect the c ourt’s view of an appropriate sentence in light of the17 g uideline ran ges under the 2016 Manual. T he district court did not indicate that the sentence it chose was appropriate regardless of wh ether the 2015 or the 2016 Manual was
consulted to calculate th at advisory guideline range. Further, the differences in the portions of the 2015 and 2016 Guidelines relevant here are significant. As set forth above , t he district court imposed a within

- guideline

sentence of 24 month s under the 201 6 Manual . To impose the same sentence using the
2015 Manual , the district court would have had to either increase the offense level by applying additional enhancements or impose an upward variance. Perhaps the district court
would have done so
. Indeed, t here may be cases in which the record clearly shows that the district court would have impose d the same sentence under either Guideline s Manual , and that the sentence would have been reasonable either way . But that is not apparent to us
from t hi s record. See Savillon

- Matute , 636 F.3d at 123 ( affirming a sentence based on an
“assumed error harmlessness inquiry ” ). Thus, this error was not harmless.

V I

. Based on the foregoing, we affirm the district court’s conclusion that Pena’s Texas burglary conviction is properly classified as an aggravated felony for purposes
of 8 U.S.C. § 1326(b)(1)

– (2). But we vacate and remand this matter in part for resentencing under the appropriate sentencing guidelines consistent with this opinion.
AFFIRMED IN PART , VACATED AND REMANDED IN PART