UNITED STATES v. RODRIGUEZ CEPEDA (2018)

ON PETITION FOR REHEARING

Ignacio Rodriguez-Cepeda appealed his sentence for illegal reentry after deportation. He contended that the district court erred in increasing his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his Texas convictions of burglary of a habitation under Texas Penal Code § 30.02. We granted the government’s unopposed motion for summary affirmance, agreeing that Rodriguez-Cepeda’s arguments were foreclosed by United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, ––– U.S. ––––, 137 S.Ct. 1359, 197 L.Ed.2d 542 (2017).

In United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), this court overruled Uribe. This panel requested letter briefs for the parties to state what action should be taken in light of Herrold. Both sides agree that the sentence cannot stand. The government carefully maintains its disagreement with Herrold for purposes of pre-serving the issue for further appellate review.

The petition for rehearing is GRANTED. The opinion, United States v. Rodriguez-Cepeda, 691 F. App’x 181 (5th Cir. 2017) (per curiam), is WITHDRAWN, and the judgment of sentence is VACATED and REMANDED for resentencing. The mandate shall issue immediately.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.