Gomez-Mendez

MEMORANDUM **

Alejandro Gomez-Mendez appeals his sentence of 77 months under 8 U.S.C. § 1326 1 for unlawful reentry into the United States after removal from the United States. He contends that the district court, upon remand for resentencing after his prior appeal, improperly refused to apply an intervening decision of our court which would have precluded imposition of the sentencing enhancement for removal following an aggravated felony conviction under 8 U.S.C. § 1326 (b). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a), and because “the [g]ov-ernment never alleged in the indictment that he had been removed on a specific, post-conviction date,” we agree that imposition of the enhanced sentence is constitutional error. United States v. Salazar-Lopez, 506 F.3d 748, 751 (9th Cir.2007). We therefore vacate the sentence, reverse, and remand for resentencing.

The district court apparently believed — and the government’s sole argument on appeal is — that the remand by the prior panel precluded it from applying controlling authority issued after the remand order. Although the breadth of the remand *525 order might reasonably be debated, 2 the application of…