     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.




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