Case Information
*1 Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: [*]
Daniel Gonzalez-Bautista pleaded guilty to illegal reentry having been previously removed subsequent to a conviction for an aggravated felony. He was sentenced to 84 months of imprisonment and three years of supervised release. Gonzalez-Bautista argues for the first time on appeal that the district court plainly erred by characterizing his prior Texas conviction for aggravated assault on a public servant as an aggravated felony under 8 U.S.C. *2 Case: 15-41467 Document: 00513780407 Page: 2 Date Filed: 12/01/2016
No. 15-41467
§ 1101(a)(43)(F) for the purposes of convicting and sentencing him under 8 U.S.C. § 1326(b)(2). Relying primarily on Johnson v. United States , 135 S. Ct. 2551 (2015), Gonzalez-Bautista argues that the definition of a crime of violence in 18 U.S.C. § 16(b), which is incorporated by reference into § 1101(a)(43)(F)’s definition of an aggravated felony, 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 Gonzalez-Bautista’s arguments are foreclosed by our recent decision in United States v. Gonzalez-Longoria , 831 F.3d 670 (5th Cir. 2016) (en banc), petition for cert . filed (Sept. 29, 2016) (No. 16-6259). The Government is correct that Gonzalez-Longoria forecloses Gonzalez-Bautista’s facial vagueness challenge to § 16(b) as well as his challenge to our application of § 16(b) on due process grounds. See Gonzalez-Longoria , 831 F.3d at 672-78.
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.
2
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.