UNITED STATES v. HERNANDEZ RAMIREZ (2018)

ON REMAND FROM THE UNITED STATES SUPREME COURT

On July 19, 2017, we issued an opinion in this case denying Ramon Hernandez-Ramirez’s challenge to his sentence and affirming the court’s entry of judgment under 8 U.S.C. § 1326(b)(2). United States v. Hernandez-Ramirez, 693 F. App'x 371 (5th Cir. 2017). Hernandez-Ramirez petitioned the Supreme Court for certiorari. Following its decision in Sessions v. Dimaya, 584 U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), the Court remanded this case to our court “for further consideration” in light of Dimaya. Hernandez-Ramirez v. United States, ––– U.S. ––––, 138 S.Ct. 1982, ––– L.Ed.2d –––– (2018). We requested supplemental briefing from the parties and now modify our judgment in part.

The parties agree, and we conclude, that the holding in Dimaya does not impact our affirmance of the sentence. They disagree, however, about whether we should reconsider the holding regarding § 1326(b)(2). Hernandez-Ramirez argues we should modify the judgment of conviction to reflect conviction under § 1326(b)(1). See United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017) (conviction under § 1326(b)(2) has significant immigration consequences). The Government agrees that Dimaya supercedes our prior holding resting on the definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(F) that incorporated the definition contained in 18 U.S.C. § 16(b) but argues that Dimaya leaves 18 U.S.C. § 16(a) undisturbed.

In the interim period, the law in this area has continued to develop. We conclude that the case should be reinstated on the docket and that the parties should file full briefing in accordance with the usual schedule.

Accordingly, we VACATE our prior affirmance and REINSTATE the appeal on our docket for new briefing and consideration.

PER CURIAM: