United States v. Fidel Flores, 670 F. App'x 261

Fidel Flores convicted of illegal reentry after deportation; district court entered judgment under 8 U.S.C. § 1326(b)(2) and applied an 8‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(C).
The enhancement and §1326(b)(2) finding rested on a prior Texas conviction for evading arrest with a motor vehicle, deemed an aggravated felony because it fell within the definition of a "crime of violence" via 8 U.S.C. §1101(a)(43)(F) and 18 U.S.C. §16(b).
Flores argued §16(b) is unconstitutionally vague in light of Johnson v. United States and that applying §16(b) to his prior Texas offense violates due process (facial and as‑applied challenges).
The Government moved unopposed for summary affirmance; the court noted summary affirmance is appropriate only where issues are foreclosed by precedent.
The Fifth Circuit held Gonzalez‑Longoria foreclosed the facial vagueness challenge but did not automatically foreclose an as‑applied challenge; nonetheless, the court found §16(b) could be "straightforwardly applied" to Flores’s evading‑arrest conviction and rejected the as‑applied challenge.
The motions for summary affirmance and for an extension of time were denied; the district court’s judgment was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 18 U.S.C. §16(b) is facially unconstitutionally vague post‑Johnson	§16(b) is void for vagueness under Johnson	Precedent forecloses facial vagueness; §16(b) valid	Rejected: Gonzalez‑Longoria forecloses facial challenge; §16(b) not void on its face
Whether §16(b) is unconstitutionally vague as applied to Flores’s Texas evading‑arrest conviction (i.e., whether that conviction is a "crime of violence")	§16(b) cannot be applied to Flores’s offense without violating due process	§16(b) can be straightforwardly applied to the Texas offense; prior decisions treat similar Texas offenses as crimes of violence	Rejected: §16(b) is not vague as applied; the Texas evading‑arrest conviction qualifies as an aggravated felony, so §2L1.2(b)(1)(C) enhancement and §1326(b)(2) designation were proper

Johnson v. United States, 135 S. Ct. 2551 (2015) (held that the residual clause of the Armed Career Criminal Act is void for vagueness)
Holy Land Found. for Relief & Dev. v. Ashcroft, 445 F.3d 771 (5th Cir. 2006) (standards for summary affirmance in the circuit)
Sanchez‑Ledezma v. United States, 630 F.3d 447 (5th Cir. 2011) (application of §16(b) to prior state offenses)
Wicker v. McCotter, 798 F.2d 155 (5th Cir. 1986) (panel bound by circuit precedent absent Supreme Court reversal)