United States v. Luis Mendoza-Aceves

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 18, 2018
• Docket: 16-40975
• Status: Unpublished

Opinion

Case: 16-40975 Document: 00514560207 Page: 1 Date Filed: 07/18/2018

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

No. 16-40975 Fifth Circuit

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

Plaintiff - Appellee

v.

LUIS MARTIN MENDOZA-ACEVES,

Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:15-CR-852-1

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JOLLY and SOUTHWICK, Circuit Judges.* PER CURIAM:** Luis Mendoza-Aceves 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 challenge to 18

* 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: 16-40975 Document: 00514560207 Page: 2 Date Filed: 07/18/2018

No. 16-40975 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. Mendoza-Aceves, 677 F. App’x 169, 170 (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 Mendoza-Aceves argues that after Dimaya his conviction under Section 1326(b)(2) should not stand, the Government contends Mendoza-Aceves has another prior conviction that can serve as the predicate for his Section 1326(b)(2) conviction by satisfying Section 16(a). Because this issue has not yet been presented to the district court, we VACATE the district court’s judgment and REMAND.