United States v. Godoy, No. 17-10838 (5th Cir. 2018)
Annotate this CaseGodoy was arrested for public intoxication in 2015. Immigration and Customs Enforcement officials detained him. Godoy pleaded guilty to illegal reentry after removal and for having reentered “subsequent to a conviction for commission of an aggravated felony.” The probation officer compared sentencing under the 2015 Guidelines with sentencing under the 2016 Guidelines and opted for the 2016 Guidelines. The PSR recommended an eight-level enhancement under section 2L1.2(b)(3)(B), which applies when a defendant has previously been convicted of a felony offense “for which the sentence imposed was two years or more” based on Godoy’s two prior Texas burglary convictions, resulting in a 2016 Guidelines range of 24–30 months. Godoy argued that using the 2016 Guidelines violated the Ex Post Facto Clause and that burglary of a habitation is not a “crime of violence” under 2L1.2(b)(1)(A)(ii). The Fifth Circuit upheld his sentence as a "wash." The 2016 Guidelines’ cross-reference to 18 U.S.C. 16(b)—the “residual clause” in the federal definition of “crime of violence”—is constitutionally unproblematic. Although the Supreme Court recently ruled it was impermissibly vague as used in the Immigration and Nationality Act’s crime-based removal provisions, it remains validly incorporated into the advisory Guidelines for definitional purposes. Godoy’s total offense level is identical under both the 2015 and 2016 Guidelines.
This opinion or order relates to an opinion or order originally issued on May 14, 2018.
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