714 F. App'x 414 | 5th Cir. | 2018
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges. PER CURIAM: [*]
The Court grants the petition for panel rehearing, withdraws its previous opinion in this matter, United States v. Gasca , 689 F. App’x 826 (5th Cir. 2017), and substitutes the following opinion.
Jesus Jose Gasca appeals the sentence of 42 months of imprisonment imposed following his guilty-plea conviction of illegal reentry into the United Case: 16-40189 Document: 00514377416 Page: 2 Date Filed: 03/07/2018 No. 16-40189 States following deportation. See 8 U.S.C. § 1326(a), (b). Gasca argues that the district court erred in treating his 2004 burglary conviction under Texas Penal Code § 30.02 as a crime of violence because, under Mathis v. United States , 136 S. Ct. 2243 (2016), § 30.02 is indivisible and not categorically a crime of violence for purposes of U.S.S.G. § § 2L1.2(b)(1)(A)(ii).
Our original opinion on this appeal affirmed the district court’s judgment based on then-controlling precedent, which held that the Texas burglary statute qualified as a generic burglary. See United States v. Uribe , 838 F.3d 667, 669-71 (5th Cir. 2016), cert. denied , 137 S. Ct. 1359 (2017); United States v. Conde Castaneda , 753 F.3d 172, 176 (5th Cir. 2014). Subsequently, on February 20, 2018, this Court, sitting en banc, expressly overruled the holding in Uribe. United States v. Herrold, __ F.3d __, No. 14-11317, 2018 WL 948373 (5th Cir. Feb. 20, 2018) (en banc). [1] More specifically, we held that the Texas burglary statute was indivisible and that it was broader than generic burglary. Id. at *18. Thus, the prior conviction under the Texas burglary statute did not qualify as a violent felony. Id. Because Gasca’s prior conviction was under the same Texas burglary statute, we VACATE his sentence and REMAND for resentencing consistent with the holding in Herrold.
NOTES
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.
[1] Although Herrold involved the definition of “violent felony” with respect to the Armed Career Criminal Act, 18 U.S.C. § 924(e), that phrase “has the same definition as ‘crime of violence’ in U.S.S.G. § 2L1.2.” United States v. Najera-Mendoza, 683 F.3d 627, 631 n.3 (5th Cir. 2012). 2