     Case: 15-41209      Document: 00514593776         Page: 1    Date Filed: 08/09/2018




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


                                    No. 15-41209                                  FILED
                                  Summary Calendar                           August 9, 2018
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

FIDEL FLORES,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-439-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Fidel Flores was convicted of illegal reentry after deportation and
sentenced to twenty-eight months of imprisonment and two years of supervised
release. On appeal, Flores contends that the district court erred by applying
an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) and entering a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41209    Document: 00514593776    Page: 2   Date Filed: 08/09/2018



                                No. 15-41209
judgment of conviction under 8 U.S.C. § 1326(b)(2), both based on a finding
that his prior Texas conviction for evading arrest with a motor vehicle
constituted an aggravated felony. Flores argues that this prior conviction
cannot serve as an aggravated felony under either the Guidelines or
§ 1326(b)(2) because the incorporated definition in 18 U.S.C. § 16(b) is
unconstitutionally vague. We affirmed. United States v. Flores, 670 F. App’x
362 (5th Cir. 2016) (per curiam).
      The Supreme Court granted Flores’s petition for a writ of certiorari,
vacated our judgment, and remanded for further consideration in light of
Sessions v. Dimaya, 138 S. Ct. 1204, 1212, 1223 (2018).       In Dimaya, the
Supreme Court held, consistent with Flores’s argument regarding § 1326(b)(2),
that 18 U.S.C. § 16(b) is unconstitutionally vague as incorporated into the
Immigration and Nationality Act. 138 S. Ct. at 1212, 1223. Accordingly, Flores
is correct that his prior conviction cannot constitute an aggravated felony
warranting judgment under § 1326(b)(2).
      As we subsequently held in United States v. Godoy, however, § 16(b)
remains validly incorporated into the advisory Guidelines for definitional
purposes. 890 F.3d 531, 533, 539 (5th Cir. 2018) (“when § 16(b) is used by the
nonbinding Guidelines solely for definitional purposes, vagueness-doctrine
principles do not apply”). Accordingly, to the extent Flores challenges the
calculation of his Guidelines range, his argument is without merit.
      In light of Dimaya, we VACATE the district court’s judgment and
REMAND for entry of judgment under 8 U.S.C. § 1326(b)(1) rather than
§ 1326(b)(2).




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