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). The post-offense Guidelines, complains Godoy, impose a 

higher sentencing range, thus violating 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 convictions.

 

1 U.S. CONST. art. 1, § 9, cl. 3.

United States Court of Appeals

Fifth Circuit

FILED

May 14, 2018

Lyle W. Cayce

Clerk
No. 17-10838

2

Godoy’s argument is well made but not well taken. The 2016 Guidelines’ 

cross-reference to 18 U.S.C. § 16(b)—the so-called “residual clause” in the 

federal definition of “crime of violence”—is constitutionally unproblematic.

Although the Supreme Court recently ruled § 16(b) was impermissibly vague 

as used in the Immigration and Nationality Act’s crime-based removal 

provisions, we hold § 16(b) remains validly incorporated into the advisory 

Guidelines for definitional purposes. The residual clause retains residual life. 

And the bottom-line sentencing math thus turns 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 following a

previous deportation. Godoy was charged with illegal reentry after removal2

and for having reentered “subsequent to a conviction for commission of an 

aggravated felony.”3 Godoy pleaded guilty.

The probation officer preparing the presentence report (PSR) compared 

sentencing under the 2015 Guidelines with sentencing 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. 

SENTENCING GUIDELINES MANUAL § 1B1.11 (U.S. SENTENCING COMM’N 2016) [2016 
No. 17-10838

3

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

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.” The enhancement reflected Godoy’s

two prior burglary convictions under Texas Penal Code § 30.02. The 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 

Guidelines range of 24–30 months.

B. Godoy’s Objections to the Presentence Report

Godoy filed objections to the PSR’s reliance on the 2016 Guidelines. He 

complained that using the 2016 Guidelines violated the Ex Post Facto Clause

because those Guidelines post-dated his offense and yielded 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. SENTENCING GUIDELINES MANUAL § 1B1.11 (U.S. SENTENCING COMM’N 2015) 

[2015 U.S.S.G.].

5 2015 U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (defining "crime 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 2016 

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 2015 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).
No. 17-10838

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. With a criminal history category of IV, 

his 2015 Guidelines range would be just 15–21 months, far preferable 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 this 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 § 2L1.2(b)(1)(C) (2015), which applies if a defendant was 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. § 1610—a different “crime of violence” definition than in

§ 2L1.2(b)(1)(A)(ii).

Godoy argued that § 16(b) was 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 not 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 interpret 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).
No. 17-10838

5

our 2016 en banc decision holding that § 16(b) is not impermissibly vague as 

incorporated into the Guidelines.11

C. The Sentencing Hearing

The 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 appealed.

II. DISCUSSION

On appeal, Godoy re-urges that the Ex Post Facto Clause required the 

district court to apply the 2015 Guidelines to his 2015 offense.

An ex post facto 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. The 

Government responded that, as Godoy acknowledged, Fifth Circuit caselaw 

 

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. 1204 

(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,” id. at 677—were abrogated by the Supreme Court’s 

holding in Dimaya. But as explained below, we believe, and the Supreme Court’s denial of 

cert seems to confirm, 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 (2013).

13 United States v. Olarte-Rojas, 820 F.3d 798, 801 (5th Cir. 2016).
No. 17-10838

6

foreclosed those arguments. But that caselaw has since changed. We therefore

evaluate Godoy’s arguments in light of these developments.

A. Our Recent En Banc Decision in Herrold

Turns out, Godoy was right about Uribe. After the parties filed their 

initial briefs, we decided United States v. Herrold.14 There, we overturned 

Uribe and held 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 crimes of violence as defined by the 

Guidelines in the commentary to that particular provision.16

After Herrold, the question became whether Godoy’s convictions

qualified as “aggravated 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 post facto violation. But if his convictions

did not qualify as aggravated felonies, 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 Godoy to a higher 

sentencing range in violation of the Ex Post Facto Clause.

 

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 committing 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 United States v. Bernel-Aveja, 844 F.3d 206, 212–14 (5th Cir. 2016) (using 

cases interpreting burglary in the ACCA to define burglary in the Guidelines).
No. 17-10838

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 Code § 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 that, 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 

violence 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 eight-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 facto violation.

B. The Supreme Court’s Even More Recent Decision in Dimaya

Turns 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.
No. 17-10838

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After Dimaya was handed down, Godoy filed 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 themselves.

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-generic burglary offense was an ‘aggravated felony’ pursuant 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 

nature, 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). And 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—the Guidelines context—that we must decide whether § 16(b) 

maintains any vitality following Dimaya’s invalidation of § 16(b) in the INA.

The 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 date of conviction for the 

aggravated felony.”).
No. 17-10838

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Guidelines context. To the contrary, any “distinction between a vagueness 

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 into the 

Guidelines themselves, Godoy could not bring a void-for-vagueness challenge.

This 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 cog 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 concluded his convictions for first-degree burglary under 

California law qualified as “crimes of violence” under § 16(b).25 He was 

therefore deportable as a matter of law. Therein lies the rub.

The Supreme Court held § 16(b) unconstitutional in Dimaya because the 

provision, like the ACCA’s residual clause,26 “produces more unpredictability 

and arbitrariness than the 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 and 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 judges.” Id. at 233. The Court went on to sever that 
No. 17-10838

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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 vagueness in criminal statutes,’ [the 

Supreme Court’s] decision in Johnson explained, is an ‘essential’ of due 

process, required by both ‘ordinary notions of fair play 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 criminal 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, the Court thus held the 

provision unconstitutionally vague because the vagueness doctrine’s principles 

applied in light of the provision’s definite legal consequences.34 Likewise, in 

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. at 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 id. 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 enforcement by judges.”); see also Beckles, 137 S. Ct. at 892 (“In Johnson, we applied 

the vagueness rule to a statute fixing permissible sentences.”).
No. 17-10838

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deportation.35 In Dimaya, the Court thus held the INA’s use of that provision 

impermissibly vague 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 Unlike the ACCA’s 

residual clause and the 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 sentence within the statutory range.”39

Indeed, even were we to vacate Godoy’s sentence, the district court could reimpose 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 “mandate 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 it 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).
No. 17-10838

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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 

range 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 independently 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. Taken 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. But it did not repeal, abolish, or invalidate § 16(b) for all purposes 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 binding authority to the contrary, § 16(b) remains incorporated 

into 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, barring 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 anyone 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 After deciding Dimaya, the Supreme Court denied the petition for certiorari 

in Gonzalez-Longoria, leaving undisturbed our bottom-line decision that § 16(b) is not 

unconstitutional when incorporated by reference into the Guidelines. And just days ago, the 

Eighth Circuit concluded, as we do today, that nothing in Dimaya declares § 16(b) 
No. 17-10838

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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 Code § 30.02 satisfies § 16(b) survives 

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

reconsider that precedent, but we decline to read Herrold so broadly.

Herrold held that Penal Code § 30.02(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 points. 

We 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 

States v. Flores, we reasoned that “[u]nder § 16(b), it is clear that burglary of a 

residence fits within the classification of offenses that Congress intended to 

include” and noted further that “[a]ny burglary might be covered under this 

language.”45 Again, nothing 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 burglary of a habitation qualified as a ‘crime 

of violence’ under § 4B1.1,” a Guidelines provision that incorporated § 16.46

 

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 against U.S.S.G. § 2L1.2(b)(1)(C). 

We see no 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).
No. 17-10838

14

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 

distinction between § 30.02(a)(1) and (a)(3) or a belief that those provisions 

capture only generic burglary. This makes sense because an offense under 

§ 30.02(a)(1) and (a)(3) is one “that, by its nature, involves a substantial risk 

that physical force against the . . . 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 entry 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 provisions as a 

 

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 course of committing the offense’ under the Texas 

statute”); see also 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 another”), 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 differs 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 . . . .”).
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crime of violence under § 16(b). Our existing caselaw indicating that any 

conviction under Penal Code § 30.02 categorically qualifies as a crime of 

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 troublefree 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: The 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 

highlights the holding of Beckles and reinforces our decision here. The 

Guidelines do not “fix the permissible sentences for criminal offenses.”50 Section 

1326(b)(2) does. Godoy’s conviction must therefore be reformed51 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 

 

49 See Beckles, 137 S. Ct. at 892.

50 Id. (emphasis in original).

51 See United States v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009).
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conviction for commission of . . . a felony (other than an aggravated felony).”52

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) 

remains validly incorporated into the Guidelines for definitional purposes, and

Godoy’s sentence offends neither vagueness nor ex post facto principles. 

For the above reasons, we REFORM the district court’s sentencing order

and AFFIRM as reformed.

 

52 8 U.S.C. § 1326(b)(1).