### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 41034 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

− Appellee ,

v ersus
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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 6, 2018 Lyle W. Cayce Clerk Case: 15-41034 Document: 00514544296 Page: 1 Date Filed: 07/06/2018No. 15

- 41034

2 On appeal, he challenged the district court’s appli cation 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 sentence d under 8 U.S.C. § 1326(b)(2). We affirmed

. Un ited 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 cer

tior ari, vacated , and remanded this matter and others for reconsideration in light of Session s v. Dimaya , 138 S. Ct. 12 04 (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 l e tter 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 purpose s 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 unconstitutiona lity 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. I n sente nc ing Cabrera under § 1326(b)(2) , which provides for a maximum sentence of 20 years for defen

dants previously convicted of an aggravated felony , the district court necessar
ily relied on the now

- unconstitutional definition of “ aggravated felony ” in § 16(b)

. See id. at 542. Thus, as the parties agree, Dimaya renders erroneous Case: 15-41034 Document: 00514544296 Page: 2 Date Filed: 07/06/2018No. 15

- 41034

3 the designation , in th e written judgment , that Cabrera was convicted and sen

tenced under § 1326(b)(2)

. The remaining question is whether we should remand

. Cabrera main

tains th at a remand for correction is the proper remedy, but the g overnment asserts that we may modify the judgment without remanding. The g overn
ment is correct : Although we could remand, c ourts of appellate jurisdiction are permitted to “ affirm, modify, vac ate, 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 sim i larly affected by Dimaya , we reformed the judg

ment to correct an errone ous refer ence to § 1326(b)(2). See Godoy , 890 F.3d
at 542. Accordingly, the judgment is MODIF IED to reflect that Cabrera was convicted and sentenced according to 8 U.S.C. § 1326 (a) and (b)(1), and t he judg ment as modified is AFFIRMED. Because Cabrera’s release date is immin ent, the mandate shall issue forthwith. Case: 15-41034 Document: 00514544296 Page: 3 Date Filed: 07/06/2018