United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-3734 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Manuel Sanchez-Rojas lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Waterloo ____________ Submitted: October 16, 2017 Filed: May 11, 2018 ____________ Before WOLLMAN, BEAM, and SHEPHERD, Circuit Judges. ____________ WOLLMAN, Circuit Judge. Manuel Sanchez-Rojas pleaded guilty to unlawful reentry as a removed alien after an aggravated felony conviction in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). The district court1 determined that Sanchez-Rojas’s base offense level 1 The Honorable Leonard T. Strand, United States District Judge for the Northern District of Iowa. was eight under § 2L1.2(a) of the 2015 U.S. Sentencing Guidelines Manual (Guidelines or U.S.S.G.). After increasing the offense level by eight for previously having been deported after “a conviction for an aggravated felony,” U.S.S.G. § 2L1.2(b)(1)(C), and reducing the offense level by three for acceptance of responsibility, U.S.S.G. § 3E1.1, the court determined that Sanchez-Rojas’s total offense level was 13, his criminal history category was V, and his advisory Guidelines sentencing range was 30 to 37 months’ imprisonment.2 Sanchez-Rojas was sentenced to 37 months’ imprisonment. Sanchez-Rojas argues that the district court plainly erred in increasing his base offense level by eight under U.S.S.G. § 2L1.2(b)(1)(C). The enhancement was based on his previous burglary convictions in violation of California Penal Code § 459. Sanchez-Rojas argues that California burglary does not satisfy the Guidelines definition of “aggravated felony.” For purposes of the enhancement, “‘aggravated felony’ has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)).” U.S.S.G. § 2L1.2 cmt. n.3. The Act defines “aggravated felony” to include “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). According to the government, Sanchez-Rojas’s California burglary convictions fall within the ambit of 18 U.S.C. § 16(b), which is known as the residual clause and which defines “crime of violence” as “any other offense that is a felony and that, by its nature, involves a 2 After Sanchez-Rojas was sentenced, the U.S. Sentencing Commission amended U.S.S.G. § 2L1.2. See U.S.S.G. app. C, amend. 802. The Guidelines citations set forth in this opinion are from the 2015 U.S. Sentencing Guidelines Manual, which was used to determine Sanchez-Rojas’s offense level. -2- substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”3 Sanchez-Rojas argued on appeal that § 16(b) should be struck down as unconstitutionally vague under the Fifth Amendment’s Due Process Clause. After his appeal was submitted to this panel, the Supreme Court declared § 16(b) void for vagueness. Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Sanchez-Rojas now argues that his case must be remanded for resentencing without the § 2L1.2(b)(1)(C) “aggravated felony” enhancement. We disagree. In Beckles ...
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