United States v. Ignacio Rodriguez-Cepeda , 714 F. App'x 442 ( 2018 )

Case: 16-41243 Document: 00514384548 Page: 1 Date Filed: 03/13/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-41243
Fifth Circuit
FILED
Summary Calendar 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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 govern-
ment carefully maintains its disagreement with Herrold for purposes of pre-
serving 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(5th Cir. 2017) (per curiam), is WITHDRAWN, and the judgment of sentence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.
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