                                                                   [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT                       FILED
                                                                 U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                                                      MARCH 24, 2011
                                                                        JOHN LEY
                                       No. 09-14937                       CLERK


                    D. C. Docket No. 08-00094-CR-FTM-99-DNF

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                           versus

SAMIR NEL CABRERA,

                                                                 Defendant-Appellant.



                     Appeal from the United States District Court
                         for the Middle District of Florida


                                     (March 24, 2011)

Before DUBINA, Chief Judge, HILL and EBEL,* Circuit Judges.




       *
        Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
PER CURIAM:

       Appellant-Defendant Samir Nel Cabrera appeals his convictions for six

counts of wire fraud, in violation of 18 U.S.C. §§ 1343, 1346, 1349, and 2, and

five counts of money laundering, in violation of 18 U.S.C. §§ 1957 and 2. Cabrera

argues that the Supreme Court’s recent decision in Skilling v. United States, 130 S.

Ct. 2896 (2010) invalidated the basis for all eleven of his convictions and requests

that we vacate them accordingly.

       Appellee United States agrees with Cabrera’s interpretation of Skilling,

conceding that the jury instructions given by the district court were erroneous and

that the evidence presented did not involve criminal conduct under 18 U.S.C. §

1346 as interpreted by Skilling. Accordingly, the government concedes in its brief

that all counts of conviction should be vacated.1

       The parties dispute whether Cabrera can be retried on the wire fraud and

money laundering charges under the theory that he defrauded investors in light of

the Fifth Amendment’s prohibition of Double Jeopardy. The district court did

not—indeed, could not—reach this issue, as it arose after Cabrera’s convictions.

For that reason, “[w]e decline to address [the issue] here, preferring that the



       1
        Because Cabrera necessarily will have to be resentenced if convicted on retrial, we decline
to consider his sentencing arguments.

                                                2
district court address it in the first instance.” Beavers v. Am. Cast Iron Pipe Co.,

975 F.2d 792, 800 (11th Cir. 1992). On remand, we direct the district court to

consider whether granting the government’s request for a new trial on the wire

fraud and money laundering charges would violate Cabrera’s Fifth Amendment

rights.

          VACATED and REMANDED.




                                          3
