### REVISED JUNE 25, 2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 10838

UNITED STATES OF AMERICA,

Plaintiff

–

Appellee , v. ELISEO BENJAMIN GODOY, also known as Eliseo Galindo, also known as Carlos Garcia, also known as Eliseo Godoy , Defendant

– Appellant

.

Appeal from the United States District Court for the Northern District of Texas

Before OWEN , SOUTHWICK, and WILLETT , Circuit Judges

. DON R. WILLETT, Circuit Judge : In this sentencing appeal, Eliseo Godoy contends the district court should have used the 2015 Sentencing Guidelines (those in effect when he committed his offense) rather than the 2016 Guidelines (those in effect when he was sentenced). T he post

- offense Guidelines , complains Godoy, impose a higher sentencing range, thus vi olating the Ex Post Facto Clause. 1 He cites
two 2018 decisions

— one from this Court and one from the United States Supreme Court

— to buoy his previously foreclosed arguments about the
enhancement effects of two prior Texas burglary conviction s

.

1 U.S. C ONST . art. 1, § 9, cl. 3. United States Court of Appeals Fifth Circuit 

### FILED M ay 14 , 2018 Lyle W. Cayce Clerk Case: 17-10838 Document: 00514526894 Page: 1 Date Filed: 06/25/2018No. 17

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2 Godoy’s argu ment is well made but not well taken. The 2016 Guidelines ’

cross
- reference to 1 8 U.S.C. § 16 (b )

— the so

- called “r esidual clause ” in the federal definition of “crime of violence”

— i s constitutionally un problematic

. Although the Supreme Court recently ruled § 1 6 (b) was impermissibly vague

as used in the Immigration and Nationality Act’s crime

- based removal provisions , we hold § 16(b) remains validly incorporated in to the advi sory Guidelines for definitional purposes

. The residual clause retains residual life.
A nd t he bottom

- line sentencing math t hus t urns out to be a wash: Godoy’s total offense level is identical under both the 2015 and 2016 Guidelines

. No harm. No foul. No ex post facto.
We AFFIRM the district court’s sentencing order as reformed

. I. BACKGROUND A. Godoy’s Offense and the Sentencing Recommendations Godoy was arrested for public intoxication on New Year’s Eve 2015

. Incident to the arrest, Immigration and Customs Enforcement officials
detained Godoy for reentering the United States without consent fol lowing a previous deportation . Godoy was charged with illegal reentry after r emoval 2 and for having reentered “ subsequent to a conviction for commission of an aggravated felony .” 3 Godoy pleaded guilty

. T he probation o fficer preparing the presentence report ( PSR ) compared sentencing under the 2015 Guidelines with senten cing under the 2016 Guidelines . The officer opted for the 2016 Guidelines, seeing no problem under the Ex Post Facto Clause

. 4

2 See 8 U.S.C. § 1326(a)

. 3 Id . § 1326(b)(2).
4 Both the 2015 and the 2016 Guidelines provide that “[t] he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced” unless using those Guidelines “ would violate the ex post facto clause of the United States Constitution .” See U.S. S ENTENCING G UIDELINES M ANUAL § 1B1.11 (U.S. S EN TENCING C OMM ’ N 2016) [2016 Case: 17-10838 Document: 00514526894 Page: 2 Date Filed: 06/25/2018No. 17

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3 The PSR recommended a base offense level of eight under § 2L1.2(a) a nd an eight

- level enhancement under § 2L1.2(b)(3)(B), which applies when a defendant has previously been convicted of a felony offense “ for which the sentence imposed was two years or more.” Th e enhancement reflected Godoy’ s
two prior burglary convictio ns under Texas Penal Code § 30.02

. T he PSR also urged a three

- level reduction for acceptance of responsibility.
Based on these calculations, Godoy received a total offense level of 13, which, coupled with his criminal history category of IV, resulted in a 2016 G uidelines range of 24

– 30 months.
B. Godoy’s Objections to the Presentence Report Go doy filed objections to the PSR’s reliance on the 2016 Guidelines. H e complained that using the 2016 Guidelines violated the Ex Post Facto Clause
because those Guidelines post

- dated his offense and yield ed a higher total offense level than the 2015 Guidelines

. Godoy first argued that burglary of a habitation, Penal Code § 30.02, is
not a “ crime of violence ” under § 2L1.2(b)(1)(A)(ii) (2015)

. 5 Under this theory,
his two burglary convictions would not trigger the 16

- level enhancement. 6 Instead, Godoy would face only the four

- level enhancement under subsection (b)(1)(D) for a prior conviction of “any other felony.” 7 By Godoy ’s math , he

U.S.S.G. ]; U.S. S ENTENCING G UIDELINES M ANUAL § 1B1.11 (U.S. S ENTENCING C OMM ’ N 2015) [2015 U.S.S.G. ].
5 2015 U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) ( defining "c rime of violence" to include “burglary of a dwelling” under state law).
6 The 2016 Guidelines abandoned the Special Offense Characteristics enhancements provided by the 2015 Guidelines at § 2L1.2(b)

— including the 16

- level enhancement under § 2L1.2(b)(1)(A)

— opting instead for a more particularized system of enhancements. See 201 6 U.S.S.G. § 2L1.2(b). In general, the new system provides for less enhancement than was previously available under § 2L1.2(b) of the 201 5 Guidelines. This change in the 2016 Guidelines is what makes possible Godoy’s ex post facto argument

— that is to say, these changes raise the potential for a sentencing range disparity between the two versions of the Guidelines, and thus the potential for an ex post facto violation.
7 See 2015 U.S.S.G. § 2L1.2(b)(1)(D). Case: 17-10838 Document: 00514526894 Page: 3 Date Filed: 06/25/2018No. 17

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4 deserved a base offense level of eight , a four

- level enhancement under subsection (b)(1)(D), and a two

- level reduction for acceptance of responsibility, resulting in a total offense level of 10. W ith a criminal history category of IV, his 2015 Guidelines range would be just 15

– 21 months , far p referable to the 2016 Guidelines range of 24

– 30 months. In support of his argument that Texas Penal Code § 30.02 is not a crime of violence under § 2L1.2 (b)(1)(A)(ii) , Godoy urged that § 30.02 is broader than generic “burglary of a dwelling.” 8 He acknowledged t his argument was foreclosed by our then

- controlling decision in United States v. Uribe

. 9 But for preservation purposes, he asserted Uribe was wrongly decided. Godoy also argued that he was not subject to an eight

- level enhancement under § 2L 1.2 (b)(1)(C) (2015), which applies if a defendant wa s deported (or unlawfully remained in the United States) after an aggravated felony
conviction. That provision adopts the definition of “aggravated felony” in 8 U.S.C. § 1101( a)( 43), which in turn adopts the definition of “crime of violence”
in 18 U.S.C. § 16 10

— a different “crime of violence” de finition than in § 2L1.2(b)(1)(A)(ii). Godoy argued that § 16(b) wa s unconstitutionally vague . And even if it
were not , a § 30.02 burglary offense is not a crime of violence under § 16(b)
because burglary does no t pose a serious risk of violence. Godoy acknowledged

8 The 2015 Guidelines provide a 16

- level enhancement for defendants deported after committing a “crime of violence.” 2015 U.S.S.G. § 2L1.2(b)(1)(A)(ii). A crime of violence includes “burglary of a dwelling.” Id. § 2L1.2 cmt. n.1(B)(iii). Because “burglary of a dwelling” is undefined in the Guidelines, we in terpret it to encompass only “ the elements contained in the generic, contemporary meaning of that offense .” United States v. Howell , 838 F.3d 489, 494 (5th Cir. 2016).
9 838 F.3d 667, 670

– 71 (5th Cir. 2016).
10 See 2015 U.S.S.G. § 2L1.2 cmt. n.3(A) (defining aggravated felony as the definition given by 8 U.S.C. § 1101(a)(43)); 8 U.S.C. § 1101(a)(43)(F) (listing “ 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” as an aggravated felony). Case: 17-10838 Document: 00514526894 Page: 4 Date Filed: 06/25/2018No. 17

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5 our 2016 en banc decision holding that § 16(b) is not impermissibly vague as incorporated into the Guidelines

. 11 C. The Sentencing Hearing
T h e district court overruled Godoy’s ex post facto arguments and adopted the PSR’s findings and conclusions

— including its use of the 2016 Guidelines.
The court imposed a sentence of 27 months imprisonment with no term of supervised release. Godoy timely appe al ed

. II . DISCUSSION On appeal, Godoy re
- urge s that the Ex Post Facto C lause require d the district court to appl y the 2015 Guidelines to his 2015 offense

. An e x post f acto violation occurs when “ a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense .” 12 Resolving Godoy ’ s ex post facto claim requires interpreting the Guidelines. “This court reviews the district
court ’ s interpretation and application of the Sentencing Guidelines de novo .” 13 When this appeal began , Godoy reasserted that our 2016 Uribe decision was wrongly decided and that § 30.02 is not a crime of violence under § 2L1.2(b)(1)(A)(ii) because it is broader than generic burglary. T he Government responded that, as Godoy acknowledged , Fifth Circuit case law

11 See, e.g. , United States v. Gonzalez

- Longoria , 831 F.3d 670, 675

– 77 (5th Cir. 2016), cert. denied , (U.S. May 14, 2018), and abrogated by Sessions v. Dimaya , 138 S. Ct. 1 204 (2018). We recognize here that the broad statements in Gonzalez

- Longoria

— i.e. , “that 18 U.S.C. § 16(b) is not unconstitutionally vague,” 831 F.3d at 672, and “that 18 U.S.C. § 16(b) is not unconstitutionally vague on its face,” i d. at 677

— were abrogate d by the Supreme Court’s holding in Dimaya . But as explained below, we believe that Dimaya did not abrogate the decision of Gonzalez

- Longoria that § 16(b) is not impermissibly vague as used in the Guidelines

. 12 Peugh v. United States , 569 U.S. 530, 533 (2 013).
13 United States v. Olarte

- Rojas , 820 F.3d 798, 801 (5th Cir. 2016). Case: 17-10838 Document: 00514526894 Page: 5 Date Filed: 06/25/2018No. 17

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6 foreclosed those arguments. But that case law has since changed

. We therefore evaluate Godoy ’ s arguments in light of the se developments

. A. Our Recent En Banc Decision in Herrold Turns out, Godoy was right about Uribe . After the parties filed their initial brief s , we decided United States v. Herrold

. 14 The re, we overturned Uribe and he l d that Texas Penal Code § 30.02(a)(1) and (a)(3) are indivisible
and that (a)(3) makes a conviction under either subsection a conviction for an offense that is broader than generic burglary

. 15 Accordingly, Godoy’s convictions do not trigger the 16

- level enhancement under § 2L1.2(b)(1)(A)(ii)
because they no longer constitute crime s of violence as defined by the Guidelines in the commentary to that particular provision

. 16 After Herrold , the question became whether Godoy’s convictions qualifie d as “ aggravate d felonies ” for purposes of § 2L1.2 (b)(1)(C). If so, Godoy
would be subject to an eight

- level enhancement , and his total offense level under the 2015 Guidelines would be the same as under the 2016 Guidelines. In that case, there would be no ex p ost f acto violation. But if his convictions did not qualify as aggravated felon ies , then Godoy would likely be , at most, subject to the four

- level enhancement under subsection (b)(1)(D) . That would

mean the district court’s use of the 2016 Guidelines subjected Godo y to a higher sentencing range in violation of the Ex Post Facto C lause

.

14 883 F.3d 517 (5th Cir. Feb. 20, 2018) ( en banc ).
15 Id. at 529 (“In light of Texas case law, we hold that Texas Penal Code §§ 30.02(a)(1) and (a)(3) are not distinct offenses, but are rather separate means of c ommitting one burglary offense. To the extent that it is inconsistent with this holding, we also overrule our earlier decision in United States v. Uribe

. ”) (citation omitted); id. at 536 (“ Texas’s burglary offense allowing for entry and subsequent intent formation

— is broader than generic burglary. ”).
16 Although Herrold involved a sentence enhancement under the Armed Career Criminal Act (ACCA), how we interpret terms in the ACCA informs how we interpret the Guidelines. See Unite d States v. Bernel

- Aveja , 844 F.3d 206, 212

– 14 (5th Cir. 2016 ) (using

case s interpreting burglary in the ACCA to define burglary i n the Guidelines). Case: 17-10838 Document: 00514526894 Page: 6 Date Filed: 06/25/2018No. 17

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7 Because the initial briefing did not address this issue , we directed the parties to file “supplemental letter brief[s] regarding whether Godoy’s prior convictions under Texas Penal Co de § 30.02 qualify as aggravated felonies under U.S.S.G. § 2L1.2(b)(1)(C) (2015) and, particularly, whether those
convictions constitute crimes of violence under 8 U.S.C. § 1101(a)(43)(F) / 18 U.S.C. § 16.” The parties promptly complied. Godoy asserted th at , in light of Herrold ’s holding that § 30.02 (a)(1) and (a)(3) are indivisible, the offense of burglary no longer qualifies as a crime of
vi olence under 18 U.S.C. § 16(b)

. But he acknowledged our prior decisions to the contrary. 17 He also reargued that § 16(b) is unconstitutionally vague. The Government countered that, as Godoy conceded , we have repeatedly treated § 30.02 as a crime of violence under 18 U.S.C. § 16(b) and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F)

— meaning § 30.02 is a qualifying felony under § 2L1.2(b)(1)(C). The Government also noted the Supreme Court has left no doubt that, when it comes to § 16(b) offenses, “[t]he classic example is burglary.” 18 The Government maintained that Godoy’s convictions subjected him to the e ight

- level enhancement under subsection (b)(1)(C), giving him the same total offense level under the 2015 Guidelines as
under the 2016 Guidelines. Thus, there was no ex post fact o violation.
B. The Supreme Court’s Even More Recent Decision in Dimaya
Turn s out , Godoy was right about 18 U.S.C. § 16(b) , too

— to an extent

. After the parties filed their post

- Herrold supplemental letter briefs, the Supreme Court held in Sessions v. Dimaya that § 16(b) , the catch

- all clause in the definition of “crime of violence,” is unconstitutionally vague as used in the INA’s criminal

- removal provisions

. 19

17 See, e.g. , United States v. Guadardo , 40 F.3d 102 (5th Cir. 1994).
18 Leocal v. Ashcroft , 543 U.S. 1, 10 (2004).
19 See 138 S. Ct. 1204 , 1210

. Case: 17-10838 Document: 00514526894 Page: 7 Date Filed: 06/25/2018No. 17

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8 After Dimaya was handed down, Godoy file d a Rule 28(j) letter noting Dimaya ’s holding and asserting that “ Dimaya , combined with Herrold

. . . resolves this appeal in favor of Mr. Godoy. ” The Government responded that Dimaya has no bearing on Godoy’s appeal because , under Beckles v. United States , the Sentencing Guidelines are not subject to vagueness challenges. 20 Godoy replied that he does not claim vagueness in the Guidelines them selves

. In a later round of supplemental briefing, Godoy noted that “[i] n Dimaya , as in this case, the Government argued that an alien’s prior conviction for a

non
- g eneric burglary offense was an ‘aggravated felony’ pursuan t to 8 U.S.C. § 1101(a)(43)(F).” He then insisted that in the wake of Dimaya , § 16(b) “is not
the law ” and that it “ logically follows that Texas burglary cannot become an aggravated felony by satisfying § 16(b). ” Under § 16(b) , a crime of violence is any felony offense “ that, by its
natur e, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. ” 21 If an offense meets this definition, it constitutes an aggravated felony under 8 U.S.C. § 1101( a)( 43)(F). An d if an offense falls under § 1101( a)( 43), it justifies an eight

- level enhancement under 2015 Guidelines § 2L1.2(b)(1)(C). 22 It is in this context

— th e Guidelines context

— that we must decide whether § 16(b) maintains any vitality following Dimaya ’s invalidation of § 16(b) in the INA

. T he Guidelines are not subject to vagueness challenges. So it does not necessarily follow from Dimaya that § 16(b) is unconstitutionally vague in the

20 See Beckles v. United States , 137 S. Ct. 886, 897 (2017) (“Because the advisory Sentencing Guidelines are not subject to a due process vagueness challenge, § 4B1.2(a) ’ s residual clause is not void for vagueness.”).
21 18 U.S.C. § 16(b).
22 See U.S.S.G. § 2L1.2 cmt. n.3(A) (“ For purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)), without regard to the d ate of conviction for the aggravated felony.” ). Case: 17-10838 Document: 00514526894 Page: 8 Date Filed: 06/25/2018No. 17

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9 Guidelines context

. To the contrary, any “ distinction between a va gueness challenge to a statute incorporated into a Guideline and a vagueness challenge
to the Guideline itself is untenable.” 23 As Godoy’s counsel conceded at oral argument, if the language of § 16(b) were cut

- and

- pasted directly in to the Guidelines themsel ves, Godoy could not bring a void

- for

- vagueness challenge

. T his is no less true where the language of § 16(b) is incorporated into the Guidelines by reference. Dimaya itself spells out why.
In Dimaya , the Supreme Court explained that § 16(b) is just one co g in the INA regime that imposes definite sentencing and deportation consequences for aliens who commit aggravated felonies. 24 In the case of James Dimaya, the Immigration Judges conclude d his convictions for first

- degree burglary under California law qualified as “crimes of violence” under § 16(b)

. 25 H e was therefore deportable as a matter of law

. T herein lies the rub. The Supreme Court held § 16(b) unconstitutional in Dimaya because the

pr ovision , like the ACCA’s residual clause, 26 “ produces more unpredictability
and arbitrariness than t he Due Process Clause tolerates.” 27 But that presupposes the Due Process Clause’s vagueness doctrine applies universally
to every context in which § 16(b) is used. Such is simply not the case when § 16(b) is used purely for its definitional content by the advisory

- only Guidelines. 28

23 Gonzalez

- Longoria , 831 F.3d at 683 (Jones, J. , concurring).
24 See Dimaya , 138 S. Ct. at 1211, 1217.
25 Id. at 1211.
26 18 U.S.C. § 924(e)(2)(B).
27 Dimaya , 138 S. Ct. at 1223 (quoting Johnson v. United States , 135 S. Ct. 2551, 2558 (2015)).
28 See United States v. Booker , 543 U.S. 220, 245 (2005) (holding “the Guidelines effectively advisory”). In assessing Booker’s Sixth Amendment challenge to the Guidelines, the Court reviewed prior constitutional challenges a nd reasoned that “ everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act of 1984 (SRA)] the provisions that make the Guidelines binding on district ju dges .” Id. at 233. The Court went on to sever that Case: 17-10838 Document: 00514526894 Page: 9 Date Filed: 06/25/2018No. 17

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10 In holding unconstitutional the INA’s use of § 16(b) in Dimaya , and the ACCA’s residual clause in Johnson , 29 the Supreme Court trained its sights on the haziness of definite legal consequences and the specter of capricious enforcement : “ ‘ The prohibition of vag ueness in criminal statutes,’ [the Supreme Court’s] decision in Johnson explained, is an ‘ essential ’ of due process, requir ed by both ‘ ordinary notions of fair pla y and the settled rules of law.’” 30 “These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences .” 31 Under this framework, “ the Court has invalidated two kinds of crim inal laws as ‘void for vagueness’ : laws
that define criminal offenses and laws that fix the permissible sentences for criminal offenses. ” 32 For some offenses, the ACCA ’s residual clause acted to adjust a defendant’s sentence from a mandated 10

- year maximum to a mandated 15

- year minimum with a maximum of life. 33 In Johnson , t he Court thus held the provision unconstitutional ly vague because the vagueness doctrine’s principles applied in light of the provision’s definite legal consequence s

. 34 Lik ewise, i n the INA context, if a defendant’s prior conviction meets the definition of § 16(b) , the INA infrastructure mandates that the defendant is eligible for

provision from the SRA, rendering the Guidelines not binding on district judges and , most critically, abrogating the Court’s previous holdings “that the Guidelines have the force and effect of laws .” Id. a t 234.
29 Johnson , 135 S. Ct. at 2563.
30 Dimaya , 138 S. Ct. at 1212 (quoting Johnson , 135 S. Ct. at 2557)

. 31 Johnson , 135 S. Ct. at 2557 (citing United States v. Batchelder , 442 U.S. 114, 123 (1979) (emphasis added) )

. 32 Beckles v. United States , 137 S. Ct. 886, 892 ( 2017) (emphasis in original).
33 See Johnson , 135 S. Ct. at 2555.
34 See i d. at 2557 (“ We are convinced that the indeterminacy of the wide

- ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary e nforcement by judges .”) ; see also Beckles , 137 S. Ct. at 892 (“ In Johnson , we applied the vagueness rule to a statute fixing permissible sentences. ”). Case: 17-10838 Document: 00514526894 Page: 10 Date Filed: 06/25/2018No. 17

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11 deportation

. 35 In Dimaya , t he Court thus held th e INA’s use of that provision impermissibly vagu e because, again, vagueness concerns were front and center given the scheme’s definite legal consequences. 36 But when § 16(b) is used by the nonbinding Guidelines solely for definitional purposes , vagueness
- doctrine principles do not apply . That is because, as the Supreme Court explained in Beckles , “[t]he advisory Guidelines

. . . do not implicate the twin concerns underlying vagueness doctrine

— providing notice and preventing arbitrary enforcement. ” 37 U nlike the ACCA’s
residual clause and t he INA infrastructure that relies on § 16(b), “ the advisory Guidelines do not fix the permissible range of sentences ” or proscribe
conduct. 38 “ To the contrary, they merely guide the exercise of a court’ s discretion in choosing an appropriate sent ence within the statutory range.” 39 Indeed, even were we to vacate Godoy’s sentence, the district court could re
impose the exact same sentence. Godoy contends § 16(b) has been wholly nullified . He cites the Supreme Court’s 2016 decision in Welch v. United States for the proposition that once a statute has been held constitutionally invalid, “it can no longer mandate or authorize any sentence.” 40 But § 16(b) does not “man date or authorize any sentence.” And neither do the Guidelines, which is precisely why they are not subject to vagueness challenges. Welch dealt with the retroactivity of Johnson ’s

35 See Dimaya , 138 S. Ct

. at 1211. Notably, despite the extensive discussion of § 16(b) ’s potential consequences and statutory uses, the Dimaya majority never mentions the Sentencing Guidelines. Nor were the Guidelines discussed at oral argument. Dimaya was an INA case, not a Guidelines case, so only so much can be read into this . But i t is interesting that neither the majority nor the parties found the Guidelines relevant to the analysis of § 16(b)’s constitutional reach.
36 Id. at 1213.
37 Beckles , 137 S. Ct. at 894.
38 Id. at 892.
39 Id.
40 Welch v. United States , 136 S. Ct. 1257, 1265 (2016). Case: 17-10838 Document: 00514526894 Page: 11 Date Filed: 06/25/2018No. 17

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12 holding and reasoned that “[b] y striking down the residual clause as void for

vagueness, Johnson changed the substantive reach of the ACCA , altering ‘ the

rang e of conduct or the class of persons that the [Act] punishes .’” 41 Dimaya , on the other hand, did not change the substantive reach of § 16(b)

— it at most changed the substantive reach of the INA. And at any rate, neither § 16(b)

— a provision that functions ind ependently of the INA and is found in an entirely different title of the United States Code

— nor the advisory Guidelines
themselves are substantive laws that fix sentences or proscribe conduct , making both wholly dissimilar to the ACCA’s residual clause . Ta ken together, the Supreme Court’s recent trio

— Johnson (2015), Beckles (2017), and Dimaya (2018)

— convinces us that the Guidelines’ continued use of § 16(b) for definitional purposes is constitutionally inoffensive. Godoy insists there is nothing left of § 16(b), that it was Supremely scrapped in Dimaya

— every case, every context, every application. Godoy is
mistaken

. Dimaya held § 16(b) impermissibly vague as incorporated into the
INA . B ut it did not repeal , abolish , or invalidate § 16(b) for all purpose s under the legal sun

. 42 Section 16(b) remains on the books , not purged from
existence

— at least for confined uses. And until Congress acts or we are presented with bin ding authority to the contrary, § 16(b) remains incor porated
in to the advisory

- only Guidelines for definitional purposes. 43

41 Id. (quoting Schriro v. Summerlin , 542 U.S. 348, 353 (2004)).
42 At oral argument, Godoy’s counsel asserted that the effect of a Supreme Court holding of impermissible vagueness, such as in Dimaya , is that the invalidated provision “is void in toto, barri ng all further actions under it.” United States v. Petrillo , 332 U.S. 1, 6 (1947). But that argument proves too much. It is certainly true the Government may no longer prosecute any one under a criminal provision held facially unconstitutional. But of course such a situation would involve, as Petrillo did, a statute that

— unlike the Guidelines and § 16(b)

— actually proscribes conduct

. 43 We note that the Eighth Circuit has concluded, as we do here, that nothing in Dimaya declares § 16(b) impermissibly vague as used in the Guidelines. United States v. Sanchez

- Rojas , 2018 WL 2171227, at *2 (8th Cir. May 11, 2018) (“Applying the Beckles / Johnson reasoning here, Sanchez

- Rojas cannot maintain his vagueness challenge Case: 17-10838 Document: 00514526894 Page: 12 Date Filed: 06/25/2018No. 17

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13 C. Godoy’s Ex Post Facto Claim In light of our holding that § 16(b) remains a viable source of defining aggravated felonies under 2015 Guidelines § 2L1.2(b)(1)(C), we conclude that

our precedent holding that Texas Penal C ode § 30.02 satisfies § 16(b) survives Dimaya

. Godoy suggests our en banc decision in Herrold is separate cause to

re consider that precedent, but we decline to read Herrold so broadly. Herrold held that Penal Code § 30.0 2(a)(1) and (a)(3) are indivisible and ultimately broader than generic burglary, but nothing in our caselaw classifying § 30.02 as a crime of violence under § 16(b ) turns on those point s

. W e held in United States v. Guadardo , for example, “ that burglary of a
habitation under section 30.02 of the Texas Penal Code is always a crime of
violence .” 44 We did not say “ generic burglary is always a crime of violence” or that “only § 30.02 (a)(1) is always a crime of violence.” Similarly , in United Stat es v. Flores , we reasoned that “[u] nder § 16(b), it is clear that burglary of a residence fits within the classification of offenses th at Congress intended to include” and noted further that “ [a]ny burglary might be covered under this language.” 45 Again, no thing in Flores limited our holding to the concept of a generic burglary or excluded a conviction under § 30.02(a)(3). And in United States v. Cruz , we reasoned that “[t]he district court . . . correctly concluded that Cruz’[s] prior conviction for burglar y of a habitation qua lified as a ‘crime of violence’ under § 4B1.1 ,” a Guidelines provision that incorporated § 16. 46 To put a finer point on it, nothing in our caselaw holding that Texas burglary qualifies as a crime of violence under § 16(b) turns on either a

against U.S.S.G. § 2L1.2(b)(1)(C). We see n o meaningful difference between a Guidelines section that uses the same language as a statute (like § 4B1.2(a)(2)) and a section that incorporates the statutory language by reference (like § 2L1.2(b)(1)(C)).”).
44 40 F.3d 102, 105 (5th Cir. 1994) (emphasis added).
45 875 F.2d 1110, 1113 (5th Cir. 1989) ( emphasis added).
46 See United States v. Cruz , 882 F.2d 922, 923 (5th Cir. 1989). Case: 17-10838 Document: 00514526894 Page: 13 Date Filed: 06/25/2018No. 17

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14 distinction between § 30.02 (a)(1) and (a)(3) or a belief that those provisions capture only generic burglary

. This makes sense beca use an offense under § 30.02(a)(1) and (a)(3) is one “ that, by its nature, involves a substantial risk that physical force against th e . . . property of another may be used in the course of committing the offense .” 47 That is because both § 30.02(a)(1) and (a)(3) require entering a habitation or building “ without the effective consent of the owner .” 48 Because unlawful entr y inherently produces a substantial risk of physical force against one’s property, there is no meaningful difference between § 30.02(a)(1) and (a)(3)

— and therefore no lesson to be learned from
Herrold

— when it comes to categorizing an offense under those pr ovisions as a crime of violence under § 16(b)

. O ur existing caselaw indicating that any conviction under Penal Code § 30.02 categorically qualifies as a crime of

47 18 U.S.C. § 16(b)

. See, e.g. , Flores , 875 F.2d at 1113 (“ Whenever a private residence is broken into, there is always a substantial risk that force will be used. ”).
48 Tex. Penal Code § 30.02(a). For this reason, we find the analysis in our vehicle burglary cases instructive. See, e.g. , Escudero

- Arciniega v. Holder , 702 F.3d 781, 784 (5th Cir. 2012) (per curiam) (analogizing New Mexico’s vehicle

- burglary offense to Texas’s similar offense and noting “there is a ‘ substantial risk that physical force against the person or property of another may be used in the co urse of committing the offense’ under the Texas statute ”); see als o United States v. Rodriguez

– Guzman , 56 F.3d 18, 20 (5th Cir. 1995) (“ the burglary of a

. . . vehicle often involves the application of destructive physical force to the property of anothe r”) , overruled on other grounds, as recognized in Ibarra

– Leyva v. Johnson , 623 F

. App ’ x 163, 167 n.20 (5th Cir. 2015). Just as the offense of burglary of a vehicle requires the unlawful entry into a vehicle and thus presents an inherent substantial risk of the use of force against one’s property, the offense of burglary of a building or habitation requires unlawful entry and thus presents a similarly inherent substantial risk of the use of force against one’s property. And just as we extended this logic from vehicle burglary to unauthorized use of a motor vehicle

— which di ffers from vehicle burglary only in that it does not require the intent to commit a felony or theft

— we find the same logical extension applies as between Texas Penal Code § 30.02(a)(1) and (a)(3), where subsection (a)(3) differs most significantly in that it does not have as an element the intent to commit a further felony, theft, or assault. See United States v. Galvan

- Rodriguez , 169 F.3d 217, 219 (5th Cir. 1999) (“ Just as burglary of a vehicle involves a substantial risk that property might be damaged or destroyed in the commission of the offense, the unauthorized use of a vehicle likewise carries a substantial risk that the vehicle might be broken into . . . .”). Case: 17-10838 Document: 00514526894 Page: 14 Date Filed: 06/25/2018No. 17

- 10838

15 violence under § 16(b) is thus unaffected by Herrold ’s holding that § 30.02(a )(1) and (a)(3) are indivisible and broader than generic burglary. As a result , Godoy’s total offense level under the 2015 Guidelines is the same as under the 2016 Guidelines, making the district court’s use of the 2016 Guidelines trouble

free under the Ex Post Facto Clause

. D. The Conviction Must Be Reformed
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. That is quite the point of Beckles

. 49 Godoy was convicted under 8 U.S.C. § 1326(a) and sentenced pursuant
to the 20

- year maximum provided by § 1326(b)(2) for defendants previously convicted of an aggravated felony. Sentencing Godoy under § 1326(b)(2) thus required exactly what the Supreme Court held to be unconstitutional in Dimaya : T he district court relied on the INA’s definition of aggravated felony found in § 16(b) to justify using a statutory provision that provides a definite legal consequence

— an increased, 20

- year maximum. The difference between § 1326(b)(2) and the advisory Guidelines highlight s the holding of Beckles and reinforce s our d ecision here. The Guidelines do not “ fix the permissible sentences for criminal offenses .” 50 Section 1326(b)(2) does . Godoy’s conviction must therefore be reformed 51 to reflect that he was sentenced according to 8 U.S.C. § 1326(b)(1), which provides for a 10

- year maximum sentence for a defendant “ whose removal was subsequent to a conviction for commission of . . . a felony (other than an aggravated felony) .” 52

49 See Beckles , 137 S. Ct. at 892.
50 Id. (emphasis in original).
51 See United States v. Mondra gon

- Santiago, 564 F.3d 357, 369 (5th Cir. 2009).
52 8 U.S.C. § 1326(b)(1). Case: 17-10838 Document: 00514526894 Page: 15 Date Filed: 06/25/2018No. 17

- 10838

16 As Godoy was sentenced to 27 months imprisonment, this reformation does not require alteration to the ordered sentence.
III

. CONCLUSION Dimaya did not rewrite the federal sentencing script

. Section 16(b)
remain s validly incorporated into the Guidelines for definitional purposes , and Godoy’ s sentence offends neither v agueness nor ex post facto principles.
F or the above reasons , w e REFORM the district court’s sentencing order and AFFIRM as reformed

. Case: 17-10838 Document: 00514526894 Page: 16 Date Filed: 06/25/2018