UNITED STATES v. SANABIA SANCHEZ (2019)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Angel De Jesus Sanabia-Sanchez, whose correct surname is Sarabia-Sanchez, pleaded guilty to illegally reentering the United States after being deported. His 33-month sentence was based in part on a prior Texas conviction of burglary of a motor vehicle, which was deemed an “aggravated felony” conviction under U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C. § 1326(b)(2). On appeal, we affirmed, rejecting Sarabia-Sanchez’s argument that 18 U.S.C. § 16(b) is unconstitutional and that his prior conviction was not a conviction for a “crime of violence” under § 16(b) and thus not an “aggravated felony” under § 1326(b)(2). United States v. Sanabia-Sanchez, 671 F. App'x 255, 255 (5th Cir. 2016), cert. granted, judgment vacated sub nom. Bello v. United States, ––– U.S. ––––, 138 S.Ct. 1976, 201 L.Ed.2d 237 (2018). At the time, Sarabia-Sanchez’s arguments were foreclosed by United States v. Gonzalez Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), cert. granted, judgment vacated, ––– U.S. ––––, 138 S.Ct. 2668, 201 L.Ed.2d 1047 (2018).

Shortly afterward, however, the Supreme Court abrogated Gonzalez-Longoria by holding that § 16(b) is unconstitutional. See Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 1214-15, 200 L.Ed.2d 549 (2018). The Court then granted certiorari in the instant case and remanded for additional consideration in light of Dimaya. See Bello, 138 S.Ct. at 1976.

The parties agree that Dimaya has no effect on Sarabia-Sanchez’s guideline sentence because § 16(b) cannot be void for vagueness when it is incorporated by reference into the Guidelines. See United States v. Godoy, 890 F.3d 531, 537-38 (5th Cir. 2018). The parties also agree that § 16(b) can no longer be used to define Sarabia-Sanchez’s prior conviction as an aggravated felony for the purpose of applying § 1326(b)(2). See Godoy, 890 F.3d at 541-42. Accordingly, the parties also agree that the judgment must be modified to state that Sarabia-Sanchez was convicted under § 1326(b)(1) rather than § 1326(b)(2).

We therefore REMAND to the district court to correct the judgment to show that Sarabia-Sanchez was convicted under § 1326(b)(1). See United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017). The judgment is otherwise AFFIRMED.

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PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.