Case: 16-40340    Document: 00514056111      Page: 1    Date Filed: 06/30/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                  No. 16-40340                           FILED
                                                                     June 30, 2017

UNITED STATES OF AMERICA,                                           Lyle W. Cayce
                                                                         Clerk
                   Plaintiff - Appellant

v.

ARTEMIO ISIDRO-ESTEBAN,

                   Defendant - Appellee



                 Appeal from the United States District Court
                      for the Southern District of Texas


Before DAVIS, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
       Artemio Isidro-Esteban pleaded guilty without a plea agreement to
being found unlawfully present in the United States following deportation.
The presentence report (PSR) recommended that Isidro-Esteban’s base offense
level of 8 be increased by 8 levels pursuant U.S.S.G. § 2L1.2(b)(1)(C) (2014), for
his two prior Texas convictions for assault, which were categorized as
aggravated felonies. Isidro’s adjusted offense level of 16 was then adjusted by
3 levels for acceptance of responsibility, resulting in a total offense level of 13.
A total criminal history score of 10 established a criminal history category of V
and a sentencing guidelines range of 30-37 months.
      Isidro-Esteban objected to the recommendation that his prior convictions
be categorized as aggravated felonies based on the definition of a crime of
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                                 No. 16-40340
violence in § 16(b).   Counsel reasserted the objection at sentencing.       The
district court sustained that objection, finding that § 16(b) as applied through
the guidelines is unconstitutionally vague. Isidro-Esteban’s resulting total
offense level was 10, and the sentencing guideline range was 21-27 months.
The district court imposed a sentence of 21 months, with no term of supervised
release. The Government filed a timely notice of appeal.
      Isidro-Esteban was released from incarceration on January 19, 2017,
after the briefs in this appeal were filed, he is not subject to a term of
supervised release, and he was removed from the United States on February 2,
2017. This case is not moot, however, as several of our sister circuits have held
that “[c]ompletion of a sentence and deportation does not moot the
[G]overnment’s appeal of an improper sentence.” United States v. Hernandez-
Garduno, 

, 1291 (10th Cir. 2006); see also United States v.
Plancarte-Alvarez, 

, 1063-64 (9th Cir. 2004); United States v.
Orrega, 

, 1095-96 (11th Cir. 2004); United States v. Suleiman,

, 36-38 (2d Cir. 2000). Therefore, we must turn to the merits.
      The merits of this case are clear and the outcome required by the existing
precedent in this circuit. This court in United States v. Gonzalez-Longoria

(5th Cir. 2016) (en banc), determined that § 16(b) is not
unconstitutionally vague in light of Johnson.      Isidro-Esteban agreed that
Gonzalez-Longoria currently forecloses the issue in this circuit, and that he
simply wished to preserve the issue for possible further review. Gonzalez-
Longoria is binding precedent unless overruled by this court en banc or by the
Supreme Court, therefore the district court erred in holding § 16(b) was
unconstitutionally vague and not granting the appropriate sentencing
enhancement.
      For these reasons, we VACATE the sentence of the district court and
REMAND for resentencing with instructions to hold resentencing at some
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                               No. 16-40340
point in the future if the defendant returns to the United States and the
Government asks the court to reopen the case for this purpose.




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