### 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

a ggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Additiona lly,

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

** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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 August 10, 2018

Lyle W. Cayce Clerk Case: 17-20486 Document: 00514594578 Page: 1 Date Filed: 08/10/2018N o . 1 7

- 2 0 4 8 6

2 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 violen ce” 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. S ENTENCING G UIDELINES M ANUAL § 2L1.2 c mt. n.3(A) ( U.S. S ENTENCING C OM M ’ N 2015)

. Pursuant to this enhancement, the district court sentenced Deleon

- Facundo within the calculated guideline range to 23 months of imprisonm ent and no supervised release. Deleon

- Facundo

r equest s that this Court alter the judgment because he believes it erroneously lists his conviction as illegal reentry following an aggravated felony. Additionally, Deleon

- Facundo request s that we remand this case for resentencing as his prior conviction was erroneously classifi ed as an aggravated felony under the 2015 Sentencing Guidelines. Specifically, h e 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, t his Court ackno wledges that t he judgment the district court entered was consistent with the state of our law at that time. Case: 17-20486 Document: 00514594578 Page: 2 Date Filed: 08/10/2018N o . 1 7

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3 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 Deleon

Facundo ’s state conviction as an aggravated felony because of this now

invalid “crime of violence” statute is inappropriate and this Court must find that the dist rict court erred in classifying Deleon

- Facundo ’s conviction as illegal reentry following an aggravated felony based on those gr ounds

. In regard to the application of the sentencing guidelines, Deleon

Facundo ’s argument i s essentially the same. He argues that because t he 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. 88 6, 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 t he appropriateness of the eight

- level § 2L1.2(b)(1)(C) aggravated felony enhancement in th e 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. Case: 17-20486 Document: 00514594578 Page: 3 Date Filed: 08/10/2018