890 F.3d 531
5th Cir.2018Background
- Defendant Eliseo Godoy pleaded guilty to illegal reentry after removal (8 U.S.C. §1326) following arrest in 2015; PSR compared sentencing under the 2015 and 2016 U.S. Sentencing Guidelines and used the 2016 Guidelines.
- PSR applied enhancements based on two prior Texas burglary convictions (Tex. Penal Code §30.02), yielding a total offense level of 13 and a Guidelines range of 24–30 months (criminal-history IV); sentence imposed was 27 months.
- Godoy objected, arguing applying the 2016 Guidelines (effective at sentencing) violated the Ex Post Facto Clause because the 2015 Guidelines (in effect at offense) would produce a lower range (15–21 months).
- Central legal disputes: (1) whether §30.02 burglary qualifies as a "crime of violence" for Guidelines enhancements; (2) whether 18 U.S.C. §16(b) (the residual clause) remains usable in the Guidelines after Sessions v. Dimaya; (3) whether using §16(b) to treat §30.02 as an aggravated felony required application of the higher statutory maximum under 8 U.S.C. §1326(b)(2).
- The Fifth Circuit concluded: (a) Herrold overruled prior precedent and held §30.02 broader than generic burglary (so it does not trigger a 16-level 2015 Guidelines enhancement based on the burglary-of-a-dwelling formulation); (b) however, §16(b) remains validly incorporated into the advisory Guidelines (Dimaya invalidated §16(b) in the INA context but did not make §16(b) unusable in the nonbinding Guidelines); (c) application of §16(b) still classifies §30.02 as an aggravated felony under the Guidelines, so Godoy’s total offense level is identical under 2015 and 2016 Guidelines—no Ex Post Facto violation.
- Because sentencing under §1326(b)(2) (20-year maximum tied to aggravated-felony status) relies on INA/§16(b) consequences invalidated by Dimaya, the court reformed Godoy’s conviction to reflect sentencing under §1326(b)(1) (10-year maximum); this reformation did not change the imposed 27-month sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether using the 2016 Guidelines violated the Ex Post Facto Clause | Godoy: 2016 Guidelines increased his Guideline range versus 2015; Ex Post Facto requires applying 2015 | Government: Guideline changes permitted; 2016 use does not increase punishment because total offense level is unchanged when prior convictions are classified as aggravated felonies under §16(b) | Held: No Ex Post Facto violation—total offense level identical under both editions because §30.02 qualifies under §16(b) for an aggravated-felony enhancement in Guidelines context |
| Whether Texas §30.02 burglary is a "crime of violence" under Guidelines §2L1.2(b)(1)(A)(ii) (2015) | Godoy: Herrold shows §30.02 is broader than generic burglary so it should not qualify for the 16-level burglary-based enhancement | Government: Precedent treated §30.02 as a crime of violence; burglary of a habitation is a paradigmatic example | Held: Herrold correctly held §30.02 broader than generic burglary, so it does not trigger the 16-level burglary-specific enhancement—but that does not resolve aggravated-felony status under §16(b) |
| Whether 18 U.S.C. §16(b) (residual clause) is void-for-vagueness in the Guidelines | Godoy: Dimaya held §16(b) void in INA context; §16(b) should be invalid for all purposes, undermining aggravated-felony classification | Government: Beckles bars vagueness challenges to the advisory Guidelines; Dimaya does not control Guidelines use | Held: §16(b) remains constitutionally usable when incorporated into the advisory Guidelines for definitional purposes—Beckles and Dimaya reconcile to allow limited Guideline incorporation |
| Whether prior §30.02 convictions qualify as aggravated felonies (affecting §1326(b) statutory maximum) | Godoy: If §16(b) cannot be used, §30.02 is not an aggravated felony and §1326(b)(2) cannot apply | Government: Under §16(b) and existing precedent, §30.02 qualifies as an aggravated felony | Held: For Guidelines definitional purposes, §30.02 qualifies under §16(b), leaving the advisory enhancements intact; but because §1326(b)(2) ties a statutory sentencing maximum to aggravated-felony status (a definite legal consequence), Dimaya forbids using §16(b) to justify the higher statutory maximum—court reformed conviction to §1326(b)(1) (10-year max) while affirming the 27-month sentence as imposed |
Key Cases Cited
- Peugh v. United States, 569 U.S. 530 (addresses ex post facto challenge to Guidelines application)
- Sessions v. Dimaya, 138 S. Ct. 1204 (held §16(b) void for vagueness in INA removal context)
- Beckles v. United States, 137 S. Ct. 886 (advisory Guidelines not subject to vagueness challenges)
- Johnson v. United States, 135 S. Ct. 2551 (ACCA residual clause void for vagueness)
- Welch v. United States, 136 S. Ct. 1257 (on retroactivity of Johnson)
- United States v. Herrold, 883 F.3d 517 (5th Cir. en banc) (held Texas §30.02 broader than generic burglary)
- United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir.) (treatment of §16(b) in Guidelines context)
- Leocal v. Ashcroft, 543 U.S. 1 (discusses crimes involving risk of physical force)