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UNITED STATES v. PERDOMO (2019)

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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff - Appellee v. Oscar Virgilio PERDOMO, Defendant - Appellant

No. 15-40958

Decided: January 28, 2019

Before JOLLY, SMITH, and GRAVES, Circuit Judges. Andrew R. Gould, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee. Marjorie A. Meyers, Federal Public Defender, Evan Gray Howze, Assistant Federal Public Defender, Scott Andrew Martin, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Oscar Virgilio Perdomo (Perdomo) pleaded guilty to illegal reentry following deportation. On appeal, Perdomo argued that the district court erred by entering a judgment reflecting that he was convicted under 8 U.S.C. § 1326(b)(2) rather than § 1326(b)(1).1 Perdomo maintained he did not have a qualifying conviction for an aggravated felony because his prior conviction in Arkansas for residential burglary did not qualify as the enumerated offense of burglary under 8 U.S.C. § 1101(a)(43)(G), nor did it qualify under § 1101(a)(43)(F)’s definition of aggravated felony, which incorporated the “crime of violence” definition from 18 U.S.C. § 16. Perdomo argued that Arkansas residential burglary did not have as an element the “use of force” required under § 16(a), and that § 16(b) was unconstitutional on its face. Because at the time we first considered Perdomo’s argument 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) compelled a determination that § 16(b) was not unconstitutionally vague, we affirmed Perdomo’s judgment on that basis and did not address Perdomo’s other arguments.

Perdomo petitioned for review before the Supreme Court, who subsequently issued its decision in Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), holding that § 16(b) was unconstitutionally vague and abrogating Gonzalez-Longoria. The Supreme Court then granted Perdomo’s petition, vacated this court’s judgment, and remanded the case for further consideration in light of Dimaya.

On remand, the parties’ filed a joint 28j letter, agreeing that in light of Dimaya, Perdomo’s prior conviction for residential burglary in Arkansas is not a qualifying aggravated felony under § 1101(a)(43)(F) as it does not have the requisite element of force under § 16(a) and § 16(b) is no longer constitutional in this context. The parties alerted us that the remaining issue in this matter—whether Arkansas’ residential burglary offense qualifies as a generic “burglary offense” under § 1101(a)(43)(G)—was being squarely addressed in a separate case before the Supreme Court, United States v. Sims, 854 F.3d 1037 (8th Cir. 2017), cert. granted, ––– U.S. ––––, 138 S.Ct. 1592, 200 L.Ed.2d 776 (2018), and that the resolution of Sims would fully resolve the issue in this case. The parties agreed that if the issue were resolved “against” Perdomo, the district court’s judgment should be affirmed; however, if the issue were resolved in Perdomo’s favor, the case should be remanded to the district court for reformation of the judgment. They requested we hold this case in abeyance pending the resolution of Sims.

We complied, and the Supreme Court subsequently issued its opinion in United States v. Stitt, ––– U.S. ––––, 139 S.Ct. 399, ––– L.Ed.2d –––– (2018), holding that Arkansas residential burglary “falls within the scope of generic burglary’s definition.” 139 S.Ct. at 406. Because the Supreme Court’s decision renders Perdomo’s conviction an aggravated felony, we AFFIRM the district court’s judgment.

FOOTNOTES

1.   Section 1326(b)(2) subjects an alien to a maximum term of imprisonment of 20 years if his prior removal was after a conviction for an aggravated felony. Section 1326(b)(1) subjects an alien to a maximum 10 years of imprisonment if he was removed after conviction of certain misdemeanors or of a non-aggravated felony.

JAMES E. GRAVES, Jr., Circuit Judge:

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