Case: 17-20423         Document: 00514591424          Page: 1     Date Filed: 08/08/2018




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                         No. 17-20423                          August 8, 2018
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                     Plaintiff-Appellee

v.

JOSE VICTOR FIALLOS,

                                                     Defendant-Appellant


                     Appeals from the United States District Court
                          for the Southern District of Texas
                               USDC No. 4:16-CR-566-1


Before GRAVES and COSTA, Circuit Judges, and BENNETT, District Judge.*
PER CURIAM: **
       Jose Victor Fiallos pleaded guilty to illegal reentry after having been
deported and convicted of aggravated assault in Texas state court. When
entering judgment, the court classified the offense as illegal reentry following
a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and
(b)(2). Fiallos does not seek to undo his sentence on appeal, but does ask us to
alter the judgment because he believes it erroneously lists his conviction as

       *   District Judge for the Southern District of Texas, sitting by designation.

       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20423      Document: 00514591424      Page: 2   Date Filed: 08/08/2018


                                    No. 17-20423

illegal reentry following an aggravated felony. He argues that his prior Texas
conviction does not constitute a “crime of violence” as defined in 18 U.S.C. § 16,
and thus does not constitute an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(F). We review this claim for plain error because Fiallos did not
raise it in the district court.
      The judgment the district court entered was consistent with the state of
our law at that time. We had rejected a vagueness challenge to 18 U.S.C.
§ 16(b). United States v. Gonzalez-Longoria, 

(5th Cir. 2016) (en
banc). Since that time however, the Supreme Court has taken the opposing
view and held that section 16(b) violates the Due Process Clause. Sessions v.
Dimaya, 

(2018). The error in treating Fiallos’s state conviction
as an aggravated felony because of this now-invalid “crime of violence” statute
is a plain or obvious one because Dimaya was decided while this case was
pending appellate consideration. Henderson v. United States, 

,
279 (2013). Misclassifying Fiallos’s prior offense also substantially affected his
rights as it is the direct and sole cause of the error in the judgment. That
leaves the final question whether the error “seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings.” United States v. Olano,

, 736 (1993).         We find that it did because of the significant
collateral consequence that can flow from the aggravated felony classification,
the constitutional nature of the Dimaya error, and the fact that correction of a
judgment is even less burdensome on remand than holding a new sentencing
hearing. Cf. Rosales-Mireles v. United States, 

, 1909 (2018)
(noting the limited burden of a resentencing compared to retrial as a reason
why sentencing errors will satisfy the fourth-prong of plain error review in the
“ordinary” case).




                                          2
    Case: 17-20423   Document: 00514591424   Page: 3   Date Filed: 08/08/2018


                              No. 17-20423

      The case is REMANDED for correction of the judgment consistent with
this opinion.




                                    3