IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20194

Summary Calendar

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. LariosVillatoro, 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.

United States Court of Appeals

Fifth Circuit

FILED

November 1, 2018

Lyle W. Cayce

Clerk

 Case: 16-20194 Document: 00514707086 Page: 1 Date Filed: 11/01/2018
No. 16-20194

2

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. GamboaGarcia, 620 F.3d 546, 548-49 (5th Cir. 2010)).

However, the Supreme Court subsequently abrogated GonzalezLongoria 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.

 Case: 16-20194 Document: 00514707086 Page: 2 Date Filed: 11/01/2018