USA v. Ignacio Rodriguez-Cepeda, No. 16-41243 (5th Cir. 2018)

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This opinion or order relates to an opinion or order originally issued on June 21, 2017.

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Case: 16-41243 Document: 00514384548 Page: 1 Date Filed: 03/13/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-41243 Summary Calendar United States Court of Appeals Fifth Circuit FILED March 13, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus IGNACIO RODRIGUEZ-CEPEDA, Defendant–Appellant. Appeal from the United States District Court for the Southern District of Texas No. 1:16-CR-17-1 ON PETITION FOR REHEARING Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: * Ignacio Rodriguez-Cepeda appealed his sentence for illegal reentry after deportation. He contended that the district court erred in increasing his 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-41243 Document: 00514384548 Page: 2 Date Filed: 03/13/2018 No. 16-41243 offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his Texas convictions of burglary of a habitation under Texas Penal Code § 30.02. We granted the government’s unopposed motion for summary affirmance, agreeing that Rodriguez-Cepeda’s arguments were foreclosed by United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017). In United States v. Herrold, No. 14-11317, 2018 U.S. App. LEXIS 4068, at *19 (5th Cir. Feb. 20, 2018) (en banc), this court overruled Uribe. This panel requested letter briefs for the parties to state what action should be taken in light of Herrold. Both sides agree that the sentence cannot stand. The government carefully maintains its disagreement with Herrold for purposes of preserving the issue for further appellate review. The petition for rehearing is GRANTED. The opinion, 691 F. App’x 181 (5th Cir. 2017) (per curiam), is WITHDRAWN, and the judgment of sentence is VACATED and REMANDED for resentencing. The mandate shall issue immediately. 2

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