United States v. Daniel Larios-Villatoro ( 2018 )

Case: 16-20194 Document: 00514707086 Page: 1 Date Filed: 11/01/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 16-20194 November 1, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL LARIOS-VILLATORO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-629-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Daniel Larios-Villatoro appealed the sentence imposed after he pleaded
guilty to being in the United States illegally. See United States v. Larios-
Villatoro, 684 F. App’x 411, 412 (5th Cir. 2017), vacated, 138 S. Ct. 1980 (2018).
He contended that a sentence increase was improperly based on a 2011
conviction for illegal reentry that qualified as an “aggravated felony” due to 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20194 Document: 00514707086 Page: 2 Date Filed: 11/01/2018
No. 16-20194
1996 Nebraska conviction for attempted arson. The Nebraska conviction was
also regarded as an aggravated felony because it was a “crime of violence.” See
8 U.S.C. § 1101(a)(43)(F) & (O). Larios-Villatoro argued that the Nebraska
crime was not a crime of violence under 8 U.S.C. § 16(b) so that neither that
offense nor the 2011 illegal reentry qualified as aggravated felonies.
We affirmed, holding in part that a challenge to the characterization of
the Nebraska conviction based on the alleged unconstitutionality of § 16(b) was
foreclosed by United States v. Gonzalez-Longoria, 831 F.3d 670, 675-77 (5th
Cir. 2016) (en banc), vacated, 138 S. Ct. 2668 (2018). See Larios-Villatoro,
684 F. App’x at 412. But we also held that there was no need to “revisit the
underlying Nebraska felony because Larios-Villatoro [had conceded] that the
prior illegal reentry offense was an aggravated felony when he pleaded guilty
in 2011.” Larios-Villatoro, 684 F. App’x at 412 (citing United States v. Gamboa-
Garcia, 620 F.3d 546, 548-49 (5th Cir. 2010)).
However, the Supreme Court subsequently abrogated Gonzalez-
Longoria by holding that § 16(b) is unconstitutional. See Sessions v. Dimaya,
138 S. Ct. 1204, 1214-15 (2018). The Court then granted certiorari in the
instant case and remanded for our additional consideration in light of Dimaya.
Villatoro v. United States, 138 S. Ct. 1980 (2018).
Dimaya precludes reliance on Gonzalez-Longoria. It does not, however,
undermine our reasoning that reexamining the Nebraska conviction remains
foreclosed because the 2011 judgment specifically showed that Larios-Villatoro
pleaded guilty under § 1326(b)(2) to an illegal reentry that was an aggravated
felony. See United States v. Piedra-Morales, 843 F.3d 623, 624-25 (5th Cir.
2016) (citing Gamboa-Garcia, 620 F.3d at 548-49), cert. denied, 137 S. Ct. 1361
(2017)). Accordingly, the judgment is AFFIRMED on the alternative ground
identified in our prior opinion in this case.
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