### 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. Larios

Villatoro , 684 F. App’x 411, 412 (5th Cir. 2017), vacated , 138 S. Ct. 1980 (2018). He contend ed 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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: 11/01/2018No. 16

- 20194

2 1996 Nebraska conviction for attempted arson . The Nebraska conviction was also regarded as an aggravated fe lony because it was a “crime of violence

. ” See 8 U.S.C. § 1101(a)(43)(F) & (O)

. Larios

- Villatoro argued that the Nebraska crime wa s not a crime of violence under 8 U.S.C. § 16(b) so that neither that offense nor the 2011 illegal reentry qualified as aggr avated felonies

. W e 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. 2 016) (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, t he 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. 198 0 (2018)

. Dimaya precludes reliance on Gonzalez

- Longoria . It does not, however, undermine our reasoning that re examin ing 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 o ur prior opinion in this case. Case: 16-20194 Document: 00514707086 Page: 2 Date Filed: 11/01/2018