     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.




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