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

United States v. Jose Lara-Garcia

United States v. Jose Lara-Garcia
U.S. Court of Appeals for the Fifth Circuit · Decided December 5, 2016 · Higginbotham, Prado, Haynes
671 F. App'x 248

United States v. Jose Lara-Garcia

Opinion

PER CURIAM: *

Following his guilty plea conviction for illegal reentry after removal, Jose Lara- *249 Garcia was sentenced within the recommended guidelines range to 46 months of imprisonment. Lara-Gareia argues that the district court erred by convicting, sentencing, and entering judgment against him pursuant to 18 U.S.C. § 1326(b)(2) based upon its determination that his 2012 conviction for aggravated assault with a deadly weapon in violation of Texas Penal Code § 22.02(a)(2) qualified as a conviction for a crime of violence under 18 U.S.C. § 16(b) and thus one for an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Relying primarily on Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), he argues that the definition of a crime of violence in § 16(b), as incorporated by reference into the definition of an aggravated felony in § 1101(a)(43)(F), 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 Lara-Garcia’s arguments are foreclosed by our decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), petition for cert. filed (Sept. 30, 2016) (No. 16-6259). The Government is correct that Gonzalez-Longoria forecloses Lara-Garcia’s facial vagueness challenge to § 16(b) and 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 *249 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 of Johnson in Lynch v. Dimaya, — U.S. -, 137 S.Ct.. 31, 195 L,Ed.2d 902 (2016), does not alter the 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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