United States v. Francisco Trevino-Rodriguez , 672 F. App'x 490 ( 2017 )


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  •      Case: 14-41091      Document: 00513833262         Page: 1    Date Filed: 01/12/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 14-41091                                FILED
    Summary Calendar                        January 12, 2017
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    FRANCISCO DE JESUS TREVINO-RODRIGUEZ,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 7:14-CR-588-1
    Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
    PER CURIAM: *
    Following his guilty plea conviction for illegal reentry after removal,
    Francisco De Jesus Trevino-Rodriguez was sentenced above his advisory
    guidelines range to 41 months of imprisonment. Trevino-Rodriguez argues
    that the district court erred by convicting, sentencing, and entering judgment
    against him pursuant to 8 U.S.C. § 1326(b) based upon its determination that
    his prior conviction for burglary of a habitation in violation of Texas Penal Code
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-41091       Document: 00513833262         Page: 2     Date Filed: 01/12/2017
    No. 14-41091
    § 30.02(a)(3) and (c)(2) was a crime of violence under 18 U.S.C. § 16(b) and thus
    was an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Relying primarily
    on Johnson v. United States, 
    135 S. Ct. 2551
    (2015), he argues that the
    definition of a crime of violence in § 16(b) 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 Trevino-Rodriguez’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 Trevino-Rodriguez’s
    facial challenge to § 16(b). Insofar as he raises an as-applied challenge, the
    claim is not strictly foreclosed by Gonzalez-Longoria because the prior
    convictions at issue differ. Summary affirmance is, therefore, inappropriate.
    Nevertheless, additional briefing is unnecessary because, just as in Gonzalez-
    Longoria, § 16(b) “can be straightforwardly applied to [Trevino’s] prior offense,”
    and Trevino “was on sufficient notice that his earlier crime of [burglary of a
    habitation] is one society condemns as violent because it involves a substantial
    risk that, in the course of its commission, force will be used against another.” 1
    
    Id. at 677-78;
    see Leocal v. Ashcroft, 
    543 U.S. 1
    , 10 (2004). Accordingly, the
    district court’s judgment is AFFIRMED, and the motions for summary
    affirmance and for an extension of time to file a brief are DENIED.
    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, 
    137 S. Ct. 31
    (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).
    2
    

Document Info

Docket Number: 14-41091

Citation Numbers: 672 F. App'x 490

Filed Date: 1/12/2017

Precedential Status: Non-Precedential

Modified Date: 1/13/2023