United States v. Jaime Abimel-Medellin , 694 F. App'x 289 ( 2017 )

Case: 16-11575 Document: 00514095316 Page: 1 Date Filed: 07/31/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11575 FILED
Summary Calendar July 31, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAIME ABIMEL-MEDELLIN,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-91-1
Before HIGGINBOTHAM, JONES and SMITH, Circuit Judges.
PER CURIAM: *
Jaime Abimel-Medellin appeals the sentence imposed following his
guilty plea conviction for illegal reentry. He argues that the district court
reversibly erred by enhancing his base offense level based upon its
determination that his prior Texas conviction for assaulting a family member
a second time within a year was a “crime of violence” under 18 U.S.C. § 16(b)
and thus an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F).
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-11575 Document: 00514095316 Page: 2 Date Filed: 07/31/2017
No. 16-11575
Abimel-Medellin now argues that the “crime of violence” definition in
§ 16(b) is unconstitutionally vague, both as applied and on its face. He did not
raise in the district court his instant argument that § 16(b) is unconstitutional
as applied because, in Texas, assaults can be committed recklessly.
Accordingly, we review that issue for plain error only. United States v. Neal,
578 F.3d 270, 272 (5th Cir. 2009) (internal quotation marks and citation
omitted).
Abimel-Medellin concedes, correctly, that our decision in United States
v. Gonzalez-Longoria, 831 F.3d 670, 677-78 (5th Cir. 2016) (en banc), petition
for cert. filed (Sept. 29, 2016) (No. 16-6259), forecloses his argument that
§ 16(b) is unconstitutional on its face. Furthermore, we held in Gonzalez-
Longoria that § 16(b) is constitutional as applied to Texas family-violence
assault convictions, like Abimel-Medellin’s, that “consisted of intentionally,
knowingly, or recklessly caus[ing] bodily injury to another.” Id. at 678; see also
TEX. PENAL CODE ANN. § 25.11(a); TEX. PENAL CODE ANN. § 22.01(a)(1). Thus,
Gonzalez-Longoria forecloses both of Abimel-Medellin’s constitutional
arguments.
The Government has filed an unopposed motion for summary affirmance
based on Abimel-Medellin’s concession that Gonzalez-Longoria forecloses his
issues on appeal. The motion for summary affirmance is GRANTED, and the
district court’s judgment is AFFIRMED. The Government’s alternative motion
for an extension of time to file a brief is DENIED as unnecessary.
2