United States v. Jorge Bacio-Gonzales , 713 F. App'x 357 ( 2018 )

Case: 16-40663 Document: 00514364790 Page: 1 Date Filed: 02/27/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-40663
Fifth Circuit
FILED
Summary Calendar February 27, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
JORGE BACIO-GONZALES, also known as Jorge Bacio-Gonzalez,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-894-1
ON PETITION FOR PANEL REHEARING
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
The petition for panel rehearing is GRANTED. We WITHDRAW our
prior opinion, United States v. Bacio-Gonzales, 690 F. App’x 193 (5th Cir. 2017),
VACATE our prior judgment affirming the sentence imposed by the district
court, and substitute the following opinion.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-40663
Jorge Bacio-Gonzales pleaded guilty to illegally reentering the United
States in violation of 8 U.S.C. § 1326. The presentence report applied a 16-level
“crime of violence” enhancement pursuant to § 2L1.2(b)(1)(A)(ii) of the 2015
Sentencing Guidelines based on Bacio-Gonzales’ prior conviction for burglary
of a habitation under Texas Penal Code § 30.02(a). The district court overruled
Bacio-Gonzales’ objections and sentenced him to 36 months in prison and a
three-year term of supervised release. On appeal, Bacio-Gonzales challenged
only the length of his prison sentence, arguing that the Texas burglary statute
is not divisible and that not every violation of § 30.02(a) constitutes a “crime of
violence” under the Guidelines. In our prior opinion, we concluded that our
decision in United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), foreclosed this
argument and affirmed. United States v. Bacio-Gonzales, 690 F. App’x 193 (5th
Cir. 2017).
Bacio-Gonzales then filed a petition for panel rehearing, which he asked
us to hold in abeyance pending resolution of the petition for en banc rehearing
in United States v. Herrold. Days ago, we issued a decision in Herrold, holding
that the Texas burglary statute is indivisible and categorically overbroad in
relation to the federal generic definition of burglary. United States v. Herrold,
No. 14-11317, 2018 WL 948373, at *1 (5th Cir. Feb. 20, 2018) (en banc); see
also id. at *8 (recognizing that this holding overrules Uribe).
Bacio-Gonzales’ attorney, the Federal Public Defender, has filed a letter
advising that this case is now moot, despite the outcome in Herrold, because
Bacio-Gonzales: (1) has completed his term of imprisonment and been released
from the custody of the Bureau of Prisons; (2) is now in the custody of U.S.
Immigration and Customs Enforcement awaiting deportation; and (3) has not
challenged on appeal any aspect of his term of supervised release or sought any
other form of relief that this court can now grant. We agree. Cf. United States
v. Heredia-Holguin, 823 F.3d 337, 342–43 & n.3 (5th Cir. 2016) (en banc)
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No. 16-40663
(holding that an appeal is not moot where a defendant has completed his prison
sentence, been deported, and seeks some form of relief related to an unexpired
term of supervised release rather than merely challenging the “term of
imprisonment” itself).
Accordingly, this appeal is DISMISSED as MOOT.
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