IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20486

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE RAMIRO DELEON-FACUNDO,

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:17-CR-94

Before GRAVES and COSTA, Circuit Judges, and BENNETT, District 

Judge.*

PER CURIAM:**

Jose Ramiro Deleon-Facundo pleaded guilty to illegal reentry after 

having been deported and convicted of indecency with a child involving 

sexual contact in Texas state court. When entering judgment, the court 

classified the offense as illegal reentry following a conviction for an 

aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Additionally, 

 * District Judge for the Southern District of Texas, sitting by designation.

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not be published and is not precedent except under the limited circumstances set forth in 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

August 10, 2018

Lyle W. Cayce

Clerk

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No. 17-20486

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the court applied an eight-level enhancement under the 2015 Sentencing 

Guidelines pursuant to a finding that Deleon-Facundo’s Texas state court 

conviction was a “crime of violence” under 18 U.S.C. § 16(b), which is 

incorporated into the definition of an aggravated felony in 8 U.S.C. § 

1101(a)(43), which is in turn cross-referenced by the 2015 Sentencing 

Guidelines. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.3(A) 

(U.S. SENTENCING COMM’N 2015). Pursuant to this enhancement, the district 

court sentenced Deleon-Facundo within the calculated guideline range to 23 

months of imprisonment and no supervised release. Deleon-Facundo

requests that this Court alter the judgment because he believes it 

erroneously lists his conviction as illegal reentry following an aggravated 

felony. Additionally, Deleon-Facundo requests that we remand this case for 

resentencing as his prior conviction was erroneously classified as an 

aggravated felony under the 2015 Sentencing Guidelines. Specifically, he 

argues that his prior Texas conviction does not constitute a “crime of 

violence” as defined in 18 U.S.C. § 16, and thus does not constitute an 

“aggravated felony” under 8 U.S.C. § 1101(a)(43)(F) or §2L1.2 of the 2015 

Sentencing Guidelines because 18 U.S.C. § 16(b) is unconstitutionally vague. 

The characterization of a prior conviction as an aggravated felony is a 

question of law that is reviewed de novo if the issue is preserved, as it was 

here. See United States v. Narez-Garcia, 819 F.3d 146, 149 (5th Cir.), cert.

denied, 137 S. Ct. 175 (2016). Likewise, this Court reviews the district 

court’s application of the Sentencing Guidelines de novo. United States v. 

Jackson, 220 F.3d 635, 636 (5th Cir. 2000). The Court will address each of 

these issues in turn.

As to the judgment, this Court acknowledges that the judgment the 

district court entered was consistent with the state of our law at that time. 

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We had rejected a vagueness challenge to 18 U.S.C. § 16(b). United States v. 

Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), vacated, 138 S.Ct. 

2668 (2018). Since that time however, the Supreme Court has taken the 

opposing view and held that § 16(b) violates the Due Process Clause. 

Sessions v. Dimaya, 138 S. Ct. 1204 (2018). As such, treating DeleonFacundo’s state conviction as an aggravated felony because of this nowinvalid “crime of violence” statute is inappropriate and this Court must find 

that the district court erred in classifying Deleon-Facundo’s conviction as 

illegal reentry following an aggravated felony based on those grounds.

In regard to the application of the sentencing guidelines, DeleonFacundo’s argument is essentially the same. He argues that because the 

Supreme Court has held in Dimaya that section 16(b) violates the Due 

Process Clause, the eight level § 2L1.2(b)(1)(C) aggravated felony 

enhancement in the 2015 Sentencing Guidelines is also inappropriate as that 

section cross-references the unconstitutionally vague definition in § 16(b). 

However, the Supreme Court in Beckles v. United States, 137 S. Ct. 886, 895 

(2017), held that the advisory Sentencing Guidelines are not subject to a 

vagueness challenge. As such, the Supreme Court’s ruling in Dimaya does 

not affect the appropriateness of the eight-level § 2L1.2(b)(1)(C) aggravated 

felony enhancement in the 2015 Sentencing Guidelines. Accordingly, the 

Court finds that the district court’s application of the sentencing guidelines 

was appropriate in this case, and upholds the decision in this regard.

The judgement is AFFIRMED IN PART and REMANDED for 

correction of the judgment consistent with this opinion. 

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