UNITED STATES v. MENDOZA ACEVES (2018)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

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 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, ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (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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PER CURIAM: ** FN** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.