IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41034

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

HECTOR ALEXANDER CABRERA,

Defendant−Appellant.

Appeal from the United States District Court

for the Southern District of Texas

No. 2:15-CR-198-1

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, SMITH, and GRAVES, Circuit Judges.

PER CURIAM:*

Hector Cabrera was convicted of being unlawfully present in the United 

States after removal and was sentenced to a 38-month term of imprisonment. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 

5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 6, 2018

Lyle W. Cayce

Clerk

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On appeal, he challenged the district court’s application of an eight-level 

aggravated-felony enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (2014). 

Cabrera also contended that the court erred by entering a judgment reflecting 

that he was convicted and sentenced under 8 U.S.C. § 1326(b)(2). We affirmed. 

United States v. Cabrera, 671 F. App’x 352 (5th Cir. 2016) (per curiam). 

In Bello v. United States, 138 S. Ct. 1976 (2018), the Court granted certiorari, vacated, and remanded this matter and others for reconsideration in 

light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In Dimaya, the Court held 

that the residual clause of 18 U.S.C. § 16(b) is unconstitutionally vague. See

id. at 1210, 1223. At our request, the parties provided supplemental letter 

briefs in which they largely agree as to the effect of Dimaya. 

In Beckles v. United States, 137 S. Ct. 886, 895 (2017), the Court held 

“that the advisory Sentencing Guidelines are not subject to a vagueness 

challenge.” “[T]he Guidelines’ continued use of § 16(b) for definitional purposes 

is constitutionally inoffensive,” so “§ 16(b) remains incorporated into the 

advisory-only Guidelines for definitional purposes.” United States v. Godoy, 

890 F.3d 531, 540 (5th Cir. 2018). It follows that, as the parties acknowledge, 

the unconstitutionality of § 16(b)’s residual clause does not render erroneous 

the district court’s application of the § 2L1.2(b)(1)(C) enhancement. See id. 

“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.” Godoy, 890 F.3d at 541−42. In sentencing Cabrera under 

§ 1326(b)(2), which provides for a maximum sentence of 20 years for defendants previously convicted of an aggravated felony, the district court necessarily relied on the now-unconstitutional definition of “aggravated felony” in 

§ 16(b). See id. at 542. Thus, as the parties agree, Dimaya renders erroneous 

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the designation, in the written judgment, that Cabrera was convicted and sentenced under § 1326(b)(2). 

The remaining question is whether we should remand. Cabrera maintains that a remand for correction is the proper remedy, but the government 

asserts that we may modify the judgment without remanding. The government is correct: Although we could remand, courts of appellate jurisdiction are 

permitted to “affirm, modify, vacate, set aside or reverse any judgment, decree, 

or order of a court lawfully brought before it for review.” 28 U.S.C. § 2106. 

Indeed, in a recent appeal similarly affected by Dimaya, we reformed the judgment to correct an erroneous reference to § 1326(b)(2). See Godoy, 890 F.3d 

at 542.

Accordingly, the judgment is MODIFIED to reflect that Cabrera was

convicted and sentenced according to 8 U.S.C. § 1326(a) and (b)(1), and the 

judgment as modified is AFFIRMED. Because Cabrera’s release date is 

imminent, the mandate shall issue forthwith.

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