United States v. Adalberto Aguirre-Arellano

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 18, 2018
• Docket: 16-40667
• Status: Unpublished

Opinion

Case: 16-40667 Document: 00514560123 Page: 1 Date Filed: 07/18/2018

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

No. 16-40667 Fifth Circuit

FILED Conference Calendar July 18, 2018 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee

v.

ADALBERTO AGUIRRE-ARELLANO, also known as Adalberto Aguirre,

Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:15-CR-1407-01

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JOLLY and SOUTHWICK, Circuit Judges.* PER CURIAM:** Adalberto Aguirre-Arellano was convicted of illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). He appealed his conviction and sentence, but, recognizing that his constitutional vagueness

* Due to Judge Edward Prado’s retirement on April 2, 2018, this matter is being decided by a quorum. See 28 U.S.C. § 26(d). ** 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: 16-40667 Document: 00514560123 Page: 2 Date Filed: 07/18/2018

No. 16-40667 challenge to 18 U.S.C. § 16(b) was foreclosed by this court’s precedent, he sought summary disposition. See United States v. Gonzalez-Longoria, 831 F.3d 670, 672 (5th Cir. 2016) (en banc), abrogated by Sessions v. Dimaya, 138 S. Ct. 1204 (2018). We granted his unopposed motion for summary disposition, affirming the district court’s judgment. United States v. Aguirre-Arellano, 677 F. App’x 158 (5th Cir. 2017). The Supreme Court granted certiorari, vacated the judgment, and remanded the case to us for further consideration in light of Dimaya’s holding that Section 16(b) is unconstitutionally vague. See Dimaya, 138 S. Ct. at 1210. The parties have each submitted a supplemental letter brief addressing what action we should take on remand. Although Aguirre-Arellano argues that his conviction under Section 1326(b)(2) should not stand in light of Dimaya, the Government contends that his conviction for aggravated assault is a crime of violence under Section 16(a) and thus his conviction under Section 1326(b)(2) was appropriate. In order that the district court can make the initial assessment of this issue, we VACATE the district court’s judgment and REMAND.