United States v. Eliseo Godoy

Case: 17-10838 Document: 00514472214 Page: 1 Date Filed: 05/14/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

No. 17-10838 May 14, 2018

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

ELISEO BENJAMIN GODOY, also known as Eliseo Galindo, also known as

Carlos Garcia, also known as Eliseo Godoy,

Defendant–Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CR-440-1

Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.

DON R. WILLETT, Circuit Judge:*

In this sentencing appeal, Eliseo Godoy contends the district court

should have used the 2015 Sentencing Guidelines (those in effect when he

committed his offense) rather than the 2016 Guidelines (those in effect when

he was sentenced). The post-offense Guidelines, complains Godoy, impose a

higher sentencing range, thus violating the Ex Post Facto Clause. 1 He cites

two 2018 decisions—one from this Court and one from the United States

* 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.

1 U.S. CONST. art. 1, § 9, cl. 3.

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Supreme Court—to buoy his previously foreclosed arguments about the

enhancement effects of two prior Texas burglary convictions.

Godoy’s argument is well made but not well taken. The 2016 Guidelines’

cross-reference to 18 U.S.C. § 16(b)—the so-called “residual clause” in the

federal definition of “crime of violence”—is constitutionally unproblematic.

Although the Supreme Court recently ruled § 16(b) was impermissibly vague

as used in the Immigration and Nationality Act’s crime-based removal

provisions, we hold § 16(b) remains validly incorporated into the advisory

Guidelines for definitional purposes. The residual clause retains residual life.

And the bottom-line sentencing math thus turns out to be a wash: Godoy’s total

offense level is identical under both the 2015 and 2016 Guidelines.

No harm. No foul. No ex post facto.

We AFFIRM the district court’s sentencing order as reformed.

I. BACKGROUND

A. Godoy’s Offense and the Sentencing Recommendations

Godoy was arrested for public intoxication on New Year’s Eve 2015.

Incident to the arrest, Immigration and Customs Enforcement officials

detained Godoy for reentering the United States without consent following a

previous deportation. Godoy was charged with illegal reentry after removal 2

and for having reentered “subsequent to a conviction for commission of an

aggravated felony.” 3 Godoy pleaded guilty.

The probation officer preparing the presentence report (PSR) compared

sentencing under the 2015 Guidelines with sentencing under the 2016

2 See 8 U.S.C. § 1326(a).

3 Id. § 1326(b)(2).

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Guidelines. The officer opted for the 2016 Guidelines, seeing no problem under

the Ex Post Facto Clause. 4

The PSR recommended a base offense level of eight under § 2L1.2(a) and

an eight-level enhancement under § 2L1.2(b)(3)(B), which applies when a

defendant has previously been convicted of a felony offense “for which the

sentence imposed was two years or more.” The enhancement reflected Godoy’s

two prior burglary convictions under Texas Penal Code § 30.02. The PSR also

urged a three-level reduction for acceptance of responsibility.

Based on these calculations, Godoy received a total offense level of 13,

which, coupled with his criminal history category of IV, resulted in a 2016

Guidelines range of 24–30 months.

B. Godoy’s Objections to the Presentence Report

Godoy filed objections to the PSR’s reliance on the 2016 Guidelines. He

complained that using the 2016 Guidelines violated the Ex Post Facto Clause

because those Guidelines post-dated his offense and yielded a higher total

offense level than the 2015 Guidelines.

Godoy first argued that burglary of a habitation, Penal Code § 30.02, is

not a “crime of violence” under § 2L1.2(b)(1)(A)(ii) (2015). 5 Under this theory,

his two burglary convictions would not trigger the 16-level enhancement. 6

4 Both the 2015 and the 2016 Guidelines provide that “[t]he court shall use the

Guidelines Manual in effect on the date that the defendant is sentenced” unless using those

Guidelines “would violate the ex post facto clause of the United States Constitution.” See U.S.

SENTENCING GUIDELINES MANUAL § 1B1.11 (U.S. SENTENCING COMM’N 2016) [2016

U.S.S.G.]; U.S. SENTENCING GUIDELINES MANUAL § 1B1.11 (U.S. SENTENCING COMM’N 2015)

[2015 U.S.S.G.].

5 2015 U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (defining "crime of violence" to include

“burglary of a dwelling” under state law).

6 The 2016 Guidelines abandoned the Special Offense Characteristics enhancements

provided by the 2015 Guidelines at § 2L1.2(b)—including the 16-level enhancement under

§ 2L1.2(b)(1)(A)—opting instead for a more particularized system of enhancements. See 2016

U.S.S.G. § 2L1.2(b). In general, the new system provides for less enhancement than was

previously available under § 2L1.2(b) of the 2015 Guidelines. This change in the 2016

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Instead, Godoy would face only the four-level enhancement under subsection

(b)(1)(D) for a prior conviction of “any other felony.” 7 By Godoy’s math, he

deserved a base offense level of eight, a four-level enhancement under

subsection (b)(1)(D), and a two-level reduction for acceptance of responsibility,

resulting in a total offense level of 10. With a criminal history category of IV,

his 2015 Guidelines range would be just 15–21 months, far preferable to the

2016 Guidelines range of 24–30 months.

In support of his argument that Texas Penal Code § 30.02 is not a crime

of violence under § 2L1.2(b)(1)(A)(ii), Godoy urged that § 30.02 is broader than

generic “burglary of a dwelling.” 8 He acknowledged this argument was

foreclosed by our then-controlling decision in United States v. Uribe. 9 But for

preservation purposes, he asserted Uribe was wrongly decided.

Godoy also argued that he was not subject to an eight-level enhancement

under § 2L1.2(b)(1)(C) (2015), which applies if a defendant was deported (or

unlawfully remained in the United States) after an aggravated felony

conviction. That provision adopts the definition of “aggravated felony” in 8

U.S.C. § 1101(a)(43), which in turn adopts the definition of “crime of violence”

in 18 U.S.C. § 16 10—a different “crime of violence” definition than in

§ 2L1.2(b)(1)(A)(ii).

Guidelines is what makes possible Godoy’s ex post facto argument—that is to say, these

changes raise the potential for a sentencing range disparity between the two versions of the

Guidelines, and thus the potential for an ex post facto violation.

7 See 2015 U.S.S.G. § 2L1.2(b)(1)(D).

8 The 2015 Guidelines provide a 16-level enhancement for defendants deported after

committing a “crime of violence.” 2015 U.S.S.G. § 2L1.2(b)(1)(A)(ii). A crime of violence

includes “burglary of a dwelling.” Id. § 2L1.2 cmt. n.1(B)(iii). Because “burglary of a dwelling”

is undefined in the Guidelines, we interpret it to encompass only “the elements contained in

the generic, contemporary meaning of that offense.” United States v. Howell, 838 F.3d 489,

494 (5th Cir. 2016).

9 838 F.3d 667, 670–71 (5th Cir. 2016).

10 See 2015 U.S.S.G. § 2L1.2 cmt. n.3(A) (defining aggravated felony as the definition

given by 8 U.S.C. § 1101(a)(43)); 8 U.S.C. § 1101(a)(43)(F) (listing “a crime of violence (as

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Godoy argued that § 16(b) was unconstitutionally vague. And even if it

were not, a § 30.02 burglary offense is not a crime of violence under § 16(b)

because burglary does not pose a serious risk of violence. Godoy acknowledged

our 2016 en banc decision holding that § 16(b) is not impermissibly vague as

incorporated into the Guidelines. 11

C. The Sentencing Hearing

The district court overruled Godoy’s ex post facto arguments and adopted

the PSR’s findings and conclusions—including its use of the 2016 Guidelines.

The court imposed a sentence of 27 months imprisonment with no term of

supervised release. Godoy timely appealed.

II. DISCUSSION

On appeal, Godoy re-urges that the Ex Post Facto Clause required the

district court to apply the 2015 Guidelines to his 2015 offense.

An ex post facto violation occurs when “a defendant is sentenced under

Guidelines promulgated after he committed his criminal acts and the new

version provides a higher applicable Guidelines sentencing range than the

version in place at the time of the offense.” 12 Resolving Godoy’s ex post facto

claim requires interpreting the Guidelines. “This court reviews the district

court’s interpretation and application of the Sentencing Guidelines de novo.” 13

defined in section 16 of title 18, but not including a purely political offense) for which the

term of imprisonment [is] at least one year” as an aggravated felony).

11 See, e.g., United States v. Gonzalez-Longoria, 831 F.3d 670, 675–77 (5th Cir. 2016),

cert. denied, (U.S. May 14, 2018), and abrogated by Sessions v. Dimaya, 138 S. Ct. 1204

(2018). We recognize here that the broad statements in Gonzalez-Longoria—i.e., “that 18

U.S.C. § 16(b) is not unconstitutionally vague,” 831 F.3d at 672, and “that 18 U.S.C. § 16(b) is

not unconstitutionally vague on its face,” id. at 677—were abrogated by the Supreme Court’s

holding in Dimaya. But as explained below, we believe, and the Supreme Court’s denial of

cert seems to confirm, that Dimaya did not abrogate the decision of Gonzalez-Longoria that

§ 16(b) is not impermissibly vague as used in the Guidelines.

12 Peugh v. United States, 569 U.S. 530, 533 (2013).

13 United States v. Olarte-Rojas, 820 F.3d 798, 801 (5th Cir. 2016).

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When this appeal began, Godoy reasserted that our 2016 Uribe decision

was wrongly decided and that § 30.02 is not a crime of violence under

§ 2L1.2(b)(1)(A)(ii) because it is broader than generic burglary. The

Government responded that, as Godoy acknowledged, Fifth Circuit caselaw

foreclosed those arguments. But that caselaw has since changed. We therefore

evaluate Godoy’s arguments in light of these developments.

A. Our Recent En Banc Decision in Herrold

Turns out, Godoy was right about Uribe. After the parties filed their

initial briefs, we decided United States v. Herrold. 14 There, we overturned

Uribe and held that Texas Penal Code § 30.02(a)(1) and (a)(3) are indivisible

and that (a)(3) makes a conviction under either subsection a conviction for an

offense that is broader than generic burglary. 15 Accordingly, Godoy’s

convictions do not trigger the 16-level enhancement under § 2L1.2(b)(1)(A)(ii)

because they no longer constitute crimes of violence as defined by the

Guidelines in the commentary to that particular provision. 16

After Herrold, the question became whether Godoy’s convictions

qualified as “aggravated felonies” for purposes of § 2L1.2(b)(1)(C). If so, Godoy

would be subject to an eight-level enhancement, and his total offense level

under the 2015 Guidelines would be the same as under the 2016 Guidelines.

In that case, there would be no ex post facto violation. But if his convictions

did not qualify as aggravated felonies, then Godoy would likely be, at most,

14 883 F.3d 517 (5th Cir. Feb. 20, 2018) (en banc).

15 Id. at 529 (“In light of Texas case law, we hold that Texas Penal Code §§ 30.02(a)(1)

and (a)(3) are not distinct offenses, but are rather separate means of committing one burglary

offense. To the extent that it is inconsistent with this holding, we also overrule our earlier

decision in United States v. Uribe.”) (citation omitted); id. at 536 (“Texas’s burglary offense

allowing for entry and subsequent intent formation—is broader than generic burglary.”).

16 Although Herrold involved a sentence enhancement under the Armed Career

Criminal Act (ACCA), how we interpret terms in the ACCA informs how we interpret the

Guidelines. See United States v. Bernel-Aveja, 844 F.3d 206, 212–14 (5th Cir. 2016) (using

cases interpreting burglary in the ACCA to define burglary in the Guidelines).

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subject to the four-level enhancement under subsection (b)(1)(D). That would

mean the district court’s use of the 2016 Guidelines subjected Godoy to a higher

sentencing range in violation of the Ex Post Facto Clause.

Because the initial briefing did not address this issue, we directed the

parties to file “supplemental letter brief[s] regarding whether Godoy’s prior

convictions under Texas Penal Code § 30.02 qualify as aggravated felonies

under U.S.S.G. § 2L1.2(b)(1)(C) (2015) and, particularly, whether those

convictions constitute crimes of violence under 8 U.S.C. § 1101(a)(43)(F) / 18

U.S.C. § 16.” The parties promptly complied.

Godoy asserted that, in light of Herrold’s holding that § 30.02(a)(1) and

(a)(3) are indivisible, the offense of burglary no longer qualifies as a crime of

violence under 18 U.S.C. § 16(b). But he acknowledged our prior decisions to

the contrary. 17 He also reargued that § 16(b) is unconstitutionally vague.

The Government countered that, as Godoy conceded, we have repeatedly

treated § 30.02 as a crime of violence under 18 U.S.C. § 16(b) and therefore an

aggravated felony under 8 U.S.C. § 1101(a)(43)(F)—meaning § 30.02 is a

qualifying felony under § 2L1.2(b)(1)(C). The Government also noted the

Supreme Court has left no doubt that, when it comes to § 16(b) offenses, “[t]he

classic example is burglary.” 18 The Government maintained that Godoy’s

convictions subjected him to the eight-level enhancement under subsection

(b)(1)(C), giving him the same total offense level under the 2015 Guidelines as

under the 2016 Guidelines. Thus, there was no ex post facto violation.

B. The Supreme Court’s Even More Recent Decision in Dimaya

Turns out, Godoy was right about 18 U.S.C. § 16(b), too—to an extent.

After the parties filed their post-Herrold supplemental letter briefs, the

17 See, e.g., United States v. Guadardo, 40 F.3d 102 (5th Cir. 1994).

18 Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).

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Supreme Court held in Sessions v. Dimaya that § 16(b), the catch-all clause in

the definition of “crime of violence,” is unconstitutionally vague as used in the

INA’s criminal-removal provisions. 19

After Dimaya was handed down, Godoy filed a Rule 28(j) letter noting

Dimaya’s holding and asserting that “Dimaya, combined with Herrold . . .

resolves this appeal in favor of Mr. Godoy.” The Government responded that

Dimaya has no bearing on Godoy’s appeal because, under Beckles v. United

States, the Sentencing Guidelines are not subject to vagueness challenges. 20

Godoy replied that he does not claim vagueness in the Guidelines themselves.

In a later round of supplemental briefing, Godoy noted that “[i]n Dimaya,

as in this case, the Government argued that an alien’s prior conviction for a

non-generic burglary offense was an ‘aggravated felony’ pursuant to 8 U.S.C.

§ 1101(a)(43)(F).” He then insisted that in the wake of Dimaya, § 16(b) “is not

the law” and that it “logically follows that Texas burglary cannot become an

aggravated felony by satisfying § 16(b).”

Under § 16(b), a crime of violence is any felony offense “that, by its

nature, involves a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense.” 21 If

an offense meets this definition, it constitutes an aggravated felony under 8

U.S.C. § 1101(a)(43)(F). And if an offense falls under § 1101(a)(43), it justifies

an eight-level enhancement under 2015 Guidelines § 2L1.2(b)(1)(C). 22 It is in

19 See 138 S. Ct. 1204, 1210.

20 See Beckles v. United States, 137 S. Ct. 886, 897 (2017) (“Because the advisory

Sentencing Guidelines are not subject to a due process vagueness challenge, § 4B1.2(a)’s

residual clause is not void for vagueness.”).

21 18 U.S.C. § 16(b).

22 See U.S.S.G. § 2L1.2 cmt. n.3(A) (“For purposes of subsection (b)(1)(C), ‘aggravated

felony’ has the meaning given that term in section 101(a)(43) of the Immigration and

Nationality Act (8 U.S.C. § 1101(a)(43)), without regard to the date of conviction for the

aggravated felony.”).

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this context—the Guidelines context—that we must decide whether § 16(b)

maintains any vitality following Dimaya’s invalidation of § 16(b) in the INA.

The Guidelines are not subject to vagueness challenges. So it does not

necessarily follow from Dimaya that § 16(b) is unconstitutionally vague in the

Guidelines context. To the contrary, any “distinction between a vagueness

challenge to a statute incorporated into a Guideline and a vagueness challenge

to the Guideline itself is untenable.” 23 As Godoy’s counsel conceded at oral

argument, if the language of § 16(b) were cut-and-pasted directly into the

Guidelines themselves, Godoy could not bring a void-for-vagueness challenge.

This is no less true where the language of § 16(b) is incorporated into the

Guidelines by reference. Dimaya itself spells out why.

In Dimaya, the Supreme Court explained that § 16(b) is just one cog in

the INA regime that imposes definite sentencing and deportation consequences

for aliens who commit aggravated felonies. 24 In the case of James Dimaya, the

Immigration Judges concluded his convictions for first-degree burglary under

California law qualified as “crimes of violence” under § 16(b). 25 He was

therefore deportable as a matter of law. Therein lies the rub.

The Supreme Court held § 16(b) unconstitutional in Dimaya because the

provision, like the ACCA’s residual clause, 26 “produces more unpredictability

and arbitrariness than the Due Process Clause tolerates.” 27 But that

presupposes the Due Process Clause’s vagueness doctrine applies universally

to every context in which § 16(b) is used. Such is simply not the case when

23 Gonzalez-Longoria, 831 F.3d at 683 (Jones, J., concurring).

24 See Dimaya, 138 S. Ct. at 1211, 1217.

25 Id. at 1211.

26 18 U.S.C. § 924(e)(2)(B).

27 Dimaya, 138 S. Ct. at 1223 (quoting Johnson v. United States, 135 S. Ct. 2551, 2558

(2015)).

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§ 16(b) is used purely for its definitional content by the advisory-only

Guidelines. 28

In holding unconstitutional the INA’s use of § 16(b) in Dimaya, and the

ACCA’s residual clause in Johnson, 29 the Supreme Court trained its sights on

the haziness of definite legal consequences and the specter of capricious

enforcement: “‘The prohibition of vagueness in criminal statutes,’ [the

Supreme Court’s] decision in Johnson explained, is an ‘essential’ of due

process, required by both ‘ordinary notions of fair play and the settled rules of

law.’” 30 “These principles apply not only to statutes defining elements of

crimes, but also to statutes fixing sentences.” 31 Under this framework, “the

Court has invalidated two kinds of criminal laws as ‘void for vagueness’: laws

that define criminal offenses and laws that fix the permissible sentences for

criminal offenses.” 32

For some offenses, the ACCA’s residual clause acted to adjust a

defendant’s sentence from a mandated 10-year maximum to a mandated 15-

year minimum with a maximum of life. 33 In Johnson, the Court thus held the

provision unconstitutionally vague because the vagueness doctrine’s principles

28 See United States v. Booker, 543 U.S. 220, 245 (2005) (holding “the Guidelines

effectively advisory”). In assessing Booker’s Sixth Amendment challenge to the Guidelines,

the Court reviewed prior constitutional challenges and reasoned that “everyone agrees that

the constitutional issues presented by these cases would have been avoided entirely if

Congress had omitted from the [Sentencing Reform Act of 1984 (SRA)] the provisions that

make the Guidelines binding on district judges.” Id. at 233. The Court went on to sever that

provision from the SRA, rendering the Guidelines not binding on district judges and, most

critically, abrogating the Court’s previous holdings “that the Guidelines have the force and

effect of laws.” Id. at 234.

29 Johnson, 135 S. Ct. at 2563.

30 Dimaya, 138 S. Ct. at 1212 (quoting Johnson, 135 S. Ct. at 2557).

31 Johnson, 135 S. Ct. at 2557 (citing United States v. Batchelder, 442 U.S. 114, 123

(1979) (emphasis added)).

32 Beckles v. United States, 137 S. Ct. 886, 892 (2017) (emphasis in original).

33 See Johnson, 135 S. Ct. at 2555.

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applied in light of the provision’s definite legal consequences. 34 Likewise, in

the INA context, if a defendant’s prior conviction meets the definition of § 16(b),

the INA infrastructure mandates that the defendant is eligible for

deportation. 35 In Dimaya, the Court thus held the INA’s use of that provision

impermissibly vague because, again, vagueness concerns were front and center

given the scheme’s definite legal consequences. 36

But when § 16(b) is used by the nonbinding Guidelines solely for

definitional purposes, vagueness-doctrine principles do not apply. That is

because, as the Supreme Court explained in Beckles, “[t]he advisory Guidelines

. . . do not implicate the twin concerns underlying vagueness doctrine—

providing notice and preventing arbitrary enforcement.” 37 Unlike the ACCA’s

residual clause and the INA infrastructure that relies on § 16(b), “the advisory

Guidelines do not fix the permissible range of sentences” or proscribe

conduct. 38 “To the contrary, they merely guide the exercise of a court’s

discretion in choosing an appropriate sentence within the statutory range.” 39

Indeed, even were we to vacate Godoy’s sentence, the district court could re-

impose the exact same sentence.

34 See id. at 2557 (“We are convinced that the indeterminacy of the wide-ranging

inquiry required by the residual clause both denies fair notice to defendants and invites

arbitrary enforcement by judges.”); see also Beckles, 137 S. Ct. at 892 (“In Johnson, we applied

the vagueness rule to a statute fixing permissible sentences.”).

35 See Dimaya, 138 S. Ct. at 1211. Notably, despite the extensive discussion of § 16(b)’s

potential consequences and statutory uses, the Dimaya majority never mentions the

Sentencing Guidelines. Nor were the Guidelines discussed at oral argument. Dimaya was an

INA case, not a Guidelines case, so only so much can be read into this. But it is interesting

that neither the majority nor the parties found the Guidelines relevant to the analysis of

§ 16(b)’s constitutional reach.

36 Id. at 1213.

37 Beckles, 137 S. Ct. at 894.

38 Id. at 892.

39 Id.

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Godoy contends § 16(b) has been wholly nullified. He cites the Supreme

Court’s 2016 decision in Welch v. United States for the proposition that once a

statute has been held constitutionally invalid, “it can no longer mandate or

authorize any sentence.” 40 But § 16(b) does not “mandate or authorize any

sentence.” And neither do the Guidelines, which is precisely why they are not

subject to vagueness challenges. Welch dealt with the retroactivity of Johnson’s

holding and reasoned that “[b]y striking down the residual clause as void for

vagueness, Johnson changed the substantive reach of the ACCA, altering ‘the

range of conduct or the class of persons that the [Act] punishes.’” 41 Dimaya, on

the other hand, did not change the substantive reach of § 16(b)—it at most

changed the substantive reach of the INA. And at any rate, neither § 16(b)—a

provision that functions independently of the INA and is found in an entirely

different title of the United States Code—nor the advisory Guidelines

themselves are substantive laws that fix sentences or proscribe conduct,

making both wholly dissimilar to the ACCA’s residual clause. Taken together,

the Supreme Court’s recent trio—Johnson (2015), Beckles (2017), and Dimaya

(2018)—convinces us that the Guidelines’ continued use of § 16(b) for

definitional purposes is constitutionally inoffensive.

Godoy insists there is nothing left of § 16(b), that it was Supremely

scrapped in Dimaya—every case, every context, every application. Godoy is

mistaken. Dimaya held § 16(b) impermissibly vague as incorporated into the

INA. But it did not repeal, abolish, or invalidate § 16(b) for all purposes under

the legal sun. 42 Section 16(b) remains on the books, not purged from

40 Welch v. United States, 136 S. Ct. 1257, 1265 (2016).

41 Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)).

42 At oral argument, Godoy’s counsel asserted that the effect of a Supreme Court

holding of impermissible vagueness, such as in Dimaya, is that the invalidated provision “is

void in toto, barring all further actions under it.” United States v. Petrillo, 332 U.S. 1, 6 (1947).

But that argument proves too much. It is certainly true the Government may no longer

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existence—at least for confined uses. And until Congress acts or we are

presented with binding authority to the contrary, § 16(b) remains incorporated

into the advisory-only Guidelines for definitional purposes. 43

C. Godoy’s Ex Post Facto Claim

In light of our holding that § 16(b) remains a viable source of defining

aggravated felonies under 2015 Guidelines § 2L1.2(b)(1)(C), we conclude that

our precedent holding that Texas Penal Code § 30.02 satisfies § 16(b) survives

Dimaya. Godoy suggests our en banc decision in Herrold is separate cause to

reconsider that precedent, but we decline to read Herrold so broadly.

Herrold held that Penal Code § 30.02(a)(1) and (a)(3) are indivisible and

ultimately broader than generic burglary, but nothing in our caselaw

classifying § 30.02 as a crime of violence under § 16(b) turns on those points.

We held in United States v. Guadardo, for example, “that burglary of a

habitation under section 30.02 of the Texas Penal Code is always a crime of

violence.” 44 We did not say “generic burglary is always a crime of violence” or

that “only § 30.02(a)(1) is always a crime of violence.” Similarly, in United

States v. Flores, we reasoned that “[u]nder § 16(b), it is clear that burglary of a

residence fits within the classification of offenses that Congress intended to

prosecute anyone under a criminal provision held facially unconstitutional. But of course

such a situation would involve, as Petrillo did, a statute that—unlike the Guidelines and

§ 16(b)—actually proscribes conduct.

43 After deciding Dimaya, the Supreme Court denied the petition for certiorari

in Gonzalez-Longoria, leaving undisturbed our bottom-line decision that § 16(b) is not

unconstitutional when incorporated by reference into the Guidelines. And just days ago, the

Eighth Circuit concluded, as we do today, that nothing in Dimaya declares § 16(b)

impermissibly vague as used in the Guidelines. United States v. Sanchez-Rojas, 2018 WL

2171227, at *2 (8th Cir. May 11, 2018) (“Applying the Beckles/Johnson reasoning here,

Sanchez-Rojas cannot maintain his vagueness challenge against U.S.S.G. § 2L1.2(b)(1)(C).

We see no meaningful difference between a Guidelines section that uses the same language

as a statute (like § 4B1.2(a)(2)) and a section that incorporates the statutory language

by reference (like § 2L1.2(b)(1)(C)).”).

44 40 F.3d 102, 105 (5th Cir. 1994) (emphasis added).

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include” and noted further that “[a]ny burglary might be covered under this

language.” 45 Again, nothing in Flores limited our holding to the concept of a

generic burglary or excluded a conviction under § 30.02(a)(3). And in United

States v. Cruz, we reasoned that “[t]he district court . . . correctly concluded

that Cruz’[s] prior conviction for burglary of a habitation qualified as a ‘crime

of violence’ under § 4B1.1,” a Guidelines provision that incorporated § 16. 46

To put a finer point on it, nothing in our caselaw holding that Texas

burglary qualifies as a crime of violence under § 16(b) turns on either a

distinction between § 30.02(a)(1) and (a)(3) or a belief that those provisions

capture only generic burglary. This makes sense because an offense under

§ 30.02(a)(1) and (a)(3) is one “that, by its nature, involves a substantial risk

that physical force against the . . . property of another may be used in the

course of committing the offense.” 47 That is because both § 30.02(a)(1) and

(a)(3) require entering a habitation or building “without the effective consent

of the owner.” 48

45 875 F.2d 1110, 1113 (5th Cir. 1989) (emphasis added).

46 See United States v. Cruz, 882 F.2d 922, 923 (5th Cir. 1989).

47 18 U.S.C. § 16(b). See, e.g., Flores, 875 F.2d at 1113 (“Whenever a private residence

is broken into, there is always a substantial risk that force will be used.”).

48 Tex. Penal Code § 30.02(a). For this reason, we find the analysis in our vehicle

burglary cases instructive. See, e.g., Escudero-Arciniega v. Holder, 702 F.3d 781, 784 (5th Cir.

2012) (per curiam) (analogizing New Mexico’s vehicle-burglary offense to Texas’s similar

offense and noting “there is a ‘substantial risk that physical force against the person or

property of another may be used in the course of committing the offense’ under the Texas

statute”); see also United States v. Rodriguez–Guzman, 56 F.3d 18, 20 (5th Cir. 1995) (“the

burglary of a . . . vehicle often involves the application of destructive physical force to the

property of another”), overruled on other grounds, as recognized in Ibarra–Leyva v. Johnson,

623 F. App’x 163, 167 n.20 (5th Cir. 2015). Just as the offense of burglary of a vehicle requires

the unlawful entry into a vehicle and thus presents an inherent substantial risk of the use of

force against one’s property, the offense of burglary of a building or habitation requires

unlawful entry and thus presents a similarly inherent substantial risk of the use of force

against one’s property. And just as we extended this logic from vehicle burglary to

unauthorized use of a motor vehicle—which differs from vehicle burglary only in that it does

not require the intent to commit a felony or theft—we find the same logical extension applies

as between Texas Penal Code § 30.02(a)(1) and (a)(3), where subsection (a)(3) differs most

significantly in that it does not have as an element the intent to commit a further felony,

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Because unlawful entry inherently produces a substantial risk of

physical force against one’s property, there is no meaningful difference

between § 30.02(a)(1) and (a)(3)—and therefore no lesson to be learned from

Herrold—when it comes to categorizing an offense under those provisions as a

crime of violence under § 16(b). Our existing caselaw indicating that any

conviction under Penal Code § 30.02 categorically qualifies as a crime of

violence under § 16(b) is thus unaffected by Herrold’s holding that § 30.02(a)(1)

and (a)(3) are indivisible and broader than generic burglary. As a result,

Godoy’s total offense level under the 2015 Guidelines is the same as under the

2016 Guidelines, making the district court’s use of the 2016 Guidelines trouble-

free under the Ex Post Facto Clause.

D. The Conviction Must Be Reformed

While Dimaya does not forbid using § 16(b) to calculate recommended

sentences under the nonbinding Guidelines, we recognize that Dimaya very

clearly speaks to situations where a sentencing maximum or minimum is

statutorily fixed. That is quite the point of Beckles. 49

Godoy was convicted under 8 U.S.C. § 1326(a) and sentenced pursuant

to the 20-year maximum provided by § 1326(b)(2) for defendants previously

convicted of an aggravated felony. Sentencing Godoy under § 1326(b)(2) thus

required exactly what the Supreme Court held to be unconstitutional in

Dimaya: The district court relied on the INA’s definition of aggravated felony

found in § 16(b) to justify using a statutory provision that provides a definite

legal consequence—an increased, 20-year maximum.

theft, or assault. See United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999)

(“Just as burglary of a vehicle involves a substantial risk that property might be damaged or

destroyed in the commission of the offense, the unauthorized use of a vehicle likewise carries

a substantial risk that the vehicle might be broken into . . . .”).

49 See Beckles, 137 S. Ct. at 892.

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The difference between § 1326(b)(2) and the advisory Guidelines

highlights the holding of Beckles and reinforces our decision here. The

Guidelines do not “fix the permissible sentences for criminal offenses.” 50 Section

1326(b)(2) does. Godoy’s conviction must therefore be reformed 51 to reflect that

he was sentenced according to 8 U.S.C. § 1326(b)(1), which provides for a 10-

year maximum sentence for a defendant “whose removal was subsequent to a

conviction for commission of . . . a felony (other than an aggravated felony).” 52

As Godoy was sentenced to 27 months imprisonment, this reformation does not

require alteration to the ordered sentence.

III. CONCLUSION

Dimaya did not rewrite the federal sentencing script. Section 16(b)

remains validly incorporated into the Guidelines for definitional purposes, and

Godoy’s sentence offends neither vagueness nor ex post facto principles.

For the above reasons, we REFORM the district court’s sentencing order

and AFFIRM as reformed.

50 Id. (emphasis in original).

51 See United States v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009).

52 8 U.S.C. § 1326(b)(1).

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