United States v. Angel Sanabia-Sanchez

Case: 14-41123 Document: 00514780930 Page: 1 Date Filed: 01/03/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-41123 January 3, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANGEL DE JESUS SANABIA-SANCHEZ, also known as Angel Sarabia-
Sanchez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:14-CR-290-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, WIENER, and CLEMENT, Circuit Judges:
PER CURIAM: *
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”
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-41123 Document: 00514780930 Page: 2 Date Filed: 01/03/2019
No. 14-41123
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,
138 S. Ct. 1976 (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, 138 S. Ct. 2668 (2018).
Shortly afterward, however, the Supreme Court abrogated Gonzalez-
Longoria by holding that § 16(b) is unconstitutional. See Sessions v. Dimaya,
138 S. Ct. 1204, 1214-15 (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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