United States v. Juan Ramirez-Villalzana

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 29, 2018
• Docket: 16-40529
• Status: Unpublished

Opinion

Case: 16-40529 Document: 00514535771 Page: 1 Date Filed: 06/29/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

No. 16-40529 FILED Summary Calendar June 29, 2018 Lyle W. Cayce Clerk UNITES STATES OF AMERICA,

Plaintiff - Appellee

v.

JUAN MANUEL RAMIREZ-VILLALZANA,

Defendant – Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:15-CR-847-1

ON PETITION FOR REHEARING EN BANC

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

Treating this petition for rehearing en banc as a petition for panel rehearing, it is GRANTED. The prior opinion, United States v. Ramirez- Villalzana, 689 F. App’x 352 (2017), is withdrawn, and the following opinion is substituted.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-40529 Document: 00514535771 Page: 2 Date Filed: 06/29/2018

No. 16-40529

In a panel decision filed May 18, 2017, we affirmed application of a sentencing enhancement that treated Texas burglary of a habitation as a “crime of violence.” That decision relied on United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), which held that the Texas burglary statute is divisible and thus subject to the modified categorical approach. Ramirez-Villalzana filed a timely motion for rehearing en banc asking the court to overrule Uribe’s divisibility analysis. The petition noted that an earlier petition raising the same issue was then pending in United States v. Herrold, No. 14-11317. The en banc court granted rehearing in Herrold, so we held this petition pending the outcome of the en banc proceeding. Herrold overruled Uribe and held that the burglary statute is not divisible. 883 F.3d 517 (5th Cir. 2018) (en banc). That means Ramirez-Villalzana’s burglary of a habitation should not have resulted in application of the 16-point crime of violence enhancement. The sentence is VACATED and this case REMANDED for resentencing.