United States v. Jose Olivarez
670 F. App'x 254
| 5th Cir. | 2016Background
- Defendant Jose Sanchez Olivarez was convicted in district court of illegal reentry after deportation under 8 U.S.C. § 1326 and received an enhanced sentence based on an alleged aggravated-felony prior.
- The district court treated his prior Texas conviction for evading arrest with a motor vehicle as an aggravated felony under the Guidelines enhancement U.S.S.G. § 2L1.2(b)(1)(C) and under § 1326(b)(2).
- Sanchez Olivarez appealed, arguing that his prior offense is not a "crime of violence" because the definition in 18 U.S.C. § 16(b) (incorporated into the aggravated-felony definition) is unconstitutionally vague in light of Johnson v. United States.
- The Government moved for summary affirmance; the court noted summary affirmance is appropriate where circuit precedent clearly forecloses relief.
- The Fifth Circuit held that its en banc decision in United States v. Gonzalez-Longoria forecloses a facial vagueness challenge to § 16(b), but Gonzalez-Longoria did not foreclose an as-applied challenge specific to evading arrest with a vehicle.
- Applying the § 16(b) standard to the facts of Sanchez Olivarez’s prior conviction, the court concluded § 16(b) is not unconstitutionally vague as applied and affirmed the district court judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 16(b) is unconstitutionally vague on its face after Johnson | § 16(b) is vague post-Johnson, so prior conviction cannot be a crime of violence | § 16(b) has been upheld by circuit precedent | Court: Foreclosed by Gonzalez-Longoria — no facial relief |
| Whether § 16(b) is unconstitutionally vague as applied to evading arrest with a motor vehicle | § 16(b) cannot be applied to his specific Texas conviction | § 16(b)'s standard can be straightforwardly applied to his prior offense | Court: § 16(b) is not vague as applied; prior conviction is an aggravated felony |
| Whether the prior conviction supports an eight-level Guidelines enhancement under § 2L1.2(b)(1)(C) | Prior offense is not a crime of violence, so enhancement is improper | Prior offense qualifies as aggravated felony/crime of violence, so enhancement applies | Court: Enhancement proper; district court decision affirmed |
| Appropriateness of summary affirmance | Seeks to avoid full briefing by showing precedent controls | Defendant opposes summary affirmance because as-applied challenge not foreclosed | Court: Denied summary affirmance motion; resolved merits and affirmed judgment |
Key Cases Cited
- Holy Land Found. for Relief & Dev. v. Ashcroft, 445 F.3d 771 (5th Cir. 2006) (standards for granting summary affirmance)
- United States v. Houston, 625 F.3d 871 (5th Cir. 2010) (noting limits on summary affirmance when issues not foreclosed)
- United States v. Sanchez-Ledezma, 630 F.3d 447 (5th Cir. 2011) (applying § 16(b) in an as-applied context)
- Ballard v. Burton, 444 F.3d 391 (5th Cir. 2006) (unpublished opinions as persuasive authority guidance)
- Wicker v. McCotter, 798 F.2d 155 (5th Cir. 1986) (panel bound by circuit precedent unless Supreme Court alters it)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (Supreme Court decision striking down the residual clause of the Armed Career Criminal Act, relied on in vagueness challenges)