U.S. Court of Appeals for the Fifth Circuit, 2016

United States v. Rudith Guerrero-Araniva

United States v. Rudith Guerrero-Araniva
U.S. Court of Appeals for the Fifth Circuit · Decided November 23, 2016 · Davis, Southwick, Higginson
664 F. App'x 404

United States v. Rudith Guerrero-Araniva

Opinion

PER CURIAM: *

Following the entry of his guilty plea conviction of illegal reentry, Rudith Val- *405 more Guerrero-Araniva was sentenced to 32 months of imprisonment, based in part on an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(C) for his prior conviction of the Texas offense of injury to a child under Tex. Penal Code § 22.04. Guerrero-Araniva argues for the first time on appeal that the distinct court plainly erred by characterizing his 1991 Texas conviction for injury to a child as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) for purposes of applying the § 2L1.2(b)(l)(C) sentencing enhancement and for convicting and sentencing him under 8 U.S.C. § 1326(b)(2). Relying primarily on Johnson v. United States, — U.S.—, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Guerrero-Araniva argues that the definition of a crime of violence in 8 U.S.C. § 16(b), which is incorporated by reference into § 1101(a)(43)(F)’s definition of an aggravated felony, is unconstitutionally vague on its face. He further contends that this court cannot apply § 16(b) in this case without violating due process. •

The Government has filed an unopposed motion for summary affirmance, urging that Guerrero-Araniva’s arguments are foreclosed by our recent decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), pet. for cert. filed (Sept. 29, 2016) (No. 16-6259). The Government is correct that Gonzalez-Longoria forecloses Guerrero-Araniva’s facial vagueness challenge to § 16(b), as well as his challenge to our application of § 16(b) on due. process grounds. 1 See id. Accordingly, the motion for summary affirmance is GRANTED, and the district court’s judgment is AFFIRMED. The Government’s alternate motion for an extension of time to file a brief is DENIED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *405 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1

. The recent grant of certiorari by the United States Supreme Court on the issue whether § 16(b) is unconstitutional in light oí Johnson in Lynch v. Dimaya, —U.S.—, 137 S.Ct. 31, 195 L.Ed.2d 902 (2016), does not alter our analysis. This court is bound by its own precedent unless and until that precedent is altered by a decision of the Supreme Court. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).

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