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

No. 17

- 20521 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. ABRAHAM HERNANDEZ , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17

- CR

- 210

- 1

Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges. PER CURIAM: * Abraham Hernandez appeals the 57

- month sentence imposed following his guilty plea for illegal reentry after deportation. Citing Peugh v. United States , 569 U.S. 530 (2013), Hernandez argues that the district court violated the Ex Post Facto Clause by appl ying the 2016 Sentencing Guidelines in determining his sentencing guidelines range because the 2015 Sentencing Guidelines, that were in effect at the time he was found unlawfully in the

* 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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 September 10, 2018 Lyle W. Cayce Clerk Case: 17-20521 Document: 00514634624 Page: 1 Date Filed: 09/10/2018No. 17

- 20521

2 United States, would have resulted in a lower sentencing guidelines ra nge. He argues that his prior Texas conviction for burglary no longer qualifies as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015), and that therefore, he would not have received a 16

- level enhancement under the 2015 Guidelines. While th is appeal was p ending, we overruled prior precedent and held that the Texas burglary statute is not divisible and is broader than the generic definition burglary. United States v. Herrold , 883 F.3d 517, 529, 541 (5th Cir. 2018) (en banc) , petitions for cert. filed (Apr. 18, 2018) (No. 17

- 1445) a nd (May 21, 2018) (No. 17

- 9127). We then expressly applied this holding to § 2L1.2(b)(1)(A)(ii) (2015), concluding that Texas burglary is no longer a crime of violence for the purposes of the 16

- level enhancement. Un ited States v. Godoy , 89 0 F.3d 531, 536 (5th Cir. 2018). In Godoy , we concluded that alt hough the Supreme Court held in Sessions v. Dimaya , 138 S. Ct. 1204, 1223 (2018), that the residual clause definition of crime of violence in 18 U.S.C. § 16(b) was un constitutionally
vague, Dimaya does not prohibit the use of § 16(b) to calculate sentences under the advisory Guidelines. Godoy , 890 F.3d at 541. Thus, Hernandez’s Texas burglary conviction would have resulted in an eight

- level increase under the 2015 Guidelines as an aggravated felony

. See § 2L1.2(b)(1)(C) (2015); Godoy , 890 F.3d at 541

. With a base offense level of eight and a three

- level reduction for acceptance of responsibility, Hernandez’s total of fense level would have been 13 under the 2015 Gu idelines compared to his total offense level of 21 under the 2016 Guidelines. Th erefore , the application of the 2016 Guidelines to Hernandez resulted in an ex post facto violation. See Peugh , 569 U.S. at 533. Additionally, the record does not show that the error was harmless. See United States v. Martinez

- Romero , 81 7 F.3d 917, 924 (5th Cir. 2016). Case: 17-20521 Document: 00514634624 Page: 2 Date Filed: 09/10/2018No. 17

- 20521

3 Hernandez also argues that the district court erred in entering a judgment under 8 U.S.C. § 1326(b)(2) because his Texas burglary conviction does not quali fy as an aggravated felony in light of Dimaya

. “While Dimaya does not forbid using § 16(b) to calculate recommended sentences under the nonbinding Guidelines, . . . Dimaya very clearly speaks to situations where a sentencing maximum or minimum is statutor ily fixed.” Godoy , 890 F.3d at 541

- 42. Thus, the district court erred in entering a judgment reflecting a sentence pursuant to § 1326(b)(2), which provides for a maximum prison term of 20 years, based on the now

- unconstitutional definition of “aggravated felony” found in § 16(b). See id . at 542

. Accordingly, the judgment is VACATED and the case is REMANDED for resentencing. Case: 17-20521 Document: 00514634624 Page: 3 Date Filed: 09/10/2018