United States v. Eliseo Godoy

Case: 17-10838 Document: 00514472214 Page: 1 Date Filed: 05/14/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 17-10838 May 14, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. ELISEO BENJAMIN GODOY, also known as Eliseo Galindo, also known as Carlos Garcia, also known as Eliseo Godoy, Defendant–Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 3:16-CR-440-1 Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges. DON R. WILLETT, Circuit Judge:* In this sentencing appeal, Eliseo Godoy contends the district court should have used the 2015 Sentencing Guidelines (those in effect when he committed his offense) rather than the 2016 Guidelines (those in effect when he was sentenced). The post-offense Guidelines, complains Godoy, impose a higher sentencing range, thus violating the Ex Post Facto Clause. 1 He cites two 2018 decisions—one from this Court and one from the United States * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 U.S. CONST. art. 1, § 9, cl. 3. Case: 17-10838 Document: 00514472214 Page: 2 Date Filed: 05/14/2018 No. 17-10838 Supreme Court—to buoy his previously foreclosed arguments about the enhancement effects of two prior Texas burglary convictions. Godoy’s argument is well made but not well taken. The 2016 Guidelines’ cross-reference to 18 U.S.C. § 16(b)—the so-called “residual clause” in the federal definition of “crime of violence”—is constitutionally unproblematic. Although the Supreme Court recently ruled § 16(b) was impermissibly vague as used in the Immigration and Nationality Act’s crime-based removal provisions, we hold § 16(b) remains validly incorporated into the advisory Guidelines for definitional purposes. The residual clause retains residual life. And the bottom-line sentencing math thus turns out to be a wash: Godoy’s total offense level is identical under both the 2015 and 2016 Guidelines. No harm. No foul. No ex post facto. We AFFIRM the district court’s sentencing order as reformed. I. BACKGROUND A. Godoy’s Offense and the Sentencing Recommendations Godoy was arrested for public intoxication on New Year’s Eve 2015. Incident to the arrest, Immigration and Customs Enforcement officials detained Godoy for reentering the United States without consent following a previous deportation. Godoy was charged with illegal reentry after removal 2 and for having reentered “subsequent to a conviction for commission of an aggravated felony.” 3 Godoy pleaded guilty. The probation officer preparing the presentence report (PSR) compared sentencing under the 2015 Guidelines with sentencing under the 2016 2 See 8 U.S.C. § 1326(a). 3 Id. § 1326(b)(2). 2 Case: 17-10838 Document: 00514472214 Page: 3 Date Filed: 05/14/2018 No. 17-10838 Guidelines. The officer opted for the 2016 Guidelines, seeing no problem under the Ex Post Facto Clause. 4 The PSR recommended a base offense level of eight under § 2L1.2(a) and an eight-level enhancement under § 2L1.2(b)(3)(B), which applies when a defendant has previously been ...

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