Opinion
No. 17-40227
07-11-2018
UNITED STATES OF AMERICA, Plaintiff - Appellee v. ESTEBAN CASABON-RAMIREZ, also known as Esteban Casabon, Defendant - Appellant
Summary Calendar Appeal from the United States District Court for the Southern District of Texas
USDC No. 2:16-CR-714-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before REAVLEY and GRAVES, Circuit Judges. PER CURIAM:
This matter is being decided by a quorum due to Judge Edward Prado's retirement on April 2, 2018. See 28 U.S.C. § 46(d).
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. --------
Esteban Casabon-Ramirez was sentenced to 20 months in prison after being convicted of illegally re-entering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Casabon-Ramirez argued that the district court plainly erred by convicting and sentencing him under § 1326(b)(2) because his prior New York conviction for sexual abuse did not qualify as a "crime of violence" under 18 U.S.C. § 16(b) or an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F). We affirmed. United States v. Casabon-Ramirez, 706 F. App'x 214 (5th Cir. 2017) (per curiam).
The Supreme Court granted Casabon-Ramirez's petition for a writ of certiorari, vacated our judgment, and remanded for further consideration in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding that 18 U.S.C. § 16(b)'s residual clause is unconstitutionally vague). In light of Dimaya, the parties agree that the district court's judgment should be corrected to reflect that Casabon-Ramirez was convicted and sentenced under 8 U.S.C. § 1326(b)(1) rather than § 1326(b)(2). Although we could remand for the district court to make this correction, we may do so ourselves. See 28 U.S.C. § 2106; see also United States v. Godoy, 890 F.3d 531, 542 (5th Cir. 2018).
Accordingly, the district court's judgment is hereby MODIFIED to reflect that Casabon-Ramirez was convicted and sentenced under 8 U.S.C. § 1326(a) and (b)(1). As thus modified, the judgment is AFFIRMED.