Opinion
No. 16-41253
08-17-2018
UNITED STATES OF AMERICA, Plaintiff-Appellee v. RAMON HERNANDEZ-RAMIREZ, also known as Ramon Hernandez, Defendant-Appellant
Summary Calendar Appeal from the United States District Court for the Southern District of Texas
USDC No. 5:16-CR-492-1
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before HIGGINBOTHAM and HAYNES, Circuit Judges. PER CURIAM:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Judge Edward Prado, a member of the original panel in this case, retired from the court on April 2, 2018, and therefore did not participate in the opinion on remand. The opinion on remand is issued by a quorum. See 28 U.S.C. § 46(d). --------
On July 19, 2017, we issued an opinion in this case denying Ramon Hernandez-Ramirez's challenge to his sentence and affirming the court's entry of judgment under 8 U.S.C. § 1326(b)(2). United States v. Hernandez-Ramirez, 693 F. App'x 371 (5th Cir. 2017). Hernandez-Ramirez petitioned the Supreme Court for certiorari. Following its decision in Sessions v. Dimaya, 584 U.S. ___, 138 S. Ct. 1204 (2018), the Court remanded this case to our court "for further consideration" in light of Dimaya. Hernandez-Ramirez v. United States, 138 S. Ct. 1982 (2018). We requested supplemental briefing from the parties and now modify our judgment in part.
The parties agree, and we conclude, that the holding in Dimaya does not impact our affirmance of the sentence. They disagree, however, about whether we should reconsider the holding regarding § 1326(b)(2). Hernandez-Ramirez argues we should modify the judgment of conviction to reflect conviction under § 1326(b)(1). See United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017) (conviction under § 1326(b)(2) has significant immigration consequences). The Government agrees that Dimaya supercedes our prior holding resting on the definition of "aggravated felony" in 8 U.S.C. § 1101(a)(43)(F) that incorporated the definition contained in 18 U.S.C. § 16(b) but argues that Dimaya leaves 18 U.S.C. § 16(a) undisturbed.
In the interim period, the law in this area has continued to develop. We conclude that the case should be reinstated on the docket and that the parties should file full briefing in accordance with the usual schedule.
Accordingly, we VACATE our prior affirmance and REINSTATE the appeal on our docket for new briefing and consideration.