     Case: 16-41253       Document: 00514605675         Page: 1    Date Filed: 08/17/2018




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

                                    No. 16-41253                               FILED
                                  Summary Calendar                       August 17, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAMON HERNANDEZ-RAMIREZ, also known as Ramon Hernandez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:16-CR-492-1
                             _______________________

     ON REMAND FROM THE UNITED STATES SUPREME COURT

Before HIGGINBOTHAM and HAYNES, Circuit Judges.                     *


PER CURIAM:
       On July 19, 2017, we issued an opinion in this case denying Ramon
Hernandez-Ramirez’s challenge to his sentence and affirming the court’s entry
of judgment under 8 U.S.C. § 1326(b)(2). United States v. Hernandez-Ramirez,
693 F. App’x 371 (5th Cir. 2017). Hernandez-Ramirez petitioned the Supreme


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. Judge Edward Prado, a member of the original panel in this case, retired from
the court on April 2, 2018, and therefore did not participate in the opinion on remand. The
opinion on remand is issued by a quorum. See 28 U.S.C. § 46(d).
    Case: 16-41253      Document: 00514605675      Page: 2   Date Filed: 08/17/2018


                                    No. 16-41253

Court for certiorari. Following its decision in Sessions v. Dimaya, 584 U.S. ___,
138 S. Ct. 1204 (2018), the Court remanded this case to our court “for further
consideration” in light of Dimaya. Hernandez-Ramirez v. United States, 138
S. Ct. 1982 (2018). We requested supplemental briefing from the parties and
now modify our judgment in part.
        The parties agree, and we conclude, that the holding in Dimaya does not
impact our affirmance of the sentence. They disagree, however, about whether
we should reconsider the holding regarding § 1326(b)(2). Hernandez-Ramirez
argues we should modify the judgment of conviction to reflect conviction under
§ 1326(b)(1). See United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir.
2017)     (conviction   under   §    1326(b)(2)    has   significant   immigration
consequences).     The Government agrees that Dimaya supercedes our prior
holding resting on the definition of “aggravated felony” in 8 U.S.C. §
1101(a)(43)(F) that incorporated the definition contained in 18 U.S.C. § 16(b)
but argues that Dimaya leaves 18 U.S.C. § 16(a) undisturbed.
        In the interim period, the law in this area has continued to develop. We
conclude that the case should be reinstated on the docket and that the parties
should file full briefing in accordance with the usual schedule.
        Accordingly, we VACATE our prior affirmance and REINSTATE the
appeal on our docket for new briefing and consideration.




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