Case Information
*1 Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: [*]
Following his guilty-plea conviction of illegal reentry, Francisco Alvaro- *2 Case: 15-40991 Document: 00513768005 Page: 2 Date Filed: 11/21/2016
No. 15-40991
Velasco was sentenced to 48 months of imprisonment, including a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) on account of his conviction of second-degree kidnapping under North Carolina General Statutes § 14-39. Alvaro-Velasco contends that the district court “committed reversible plain error by convicting, sentencing, and entering judgment against Alvaro-Velasco under 8 U.S.C. § 1326(b)(2) based on its determination that his prior kidnap- ping conviction qualified as a conviction for a ‘crime of violence’ under 18 U.S.C. § 16(b) and thus one for an ‘aggravated felony’ under 8 U.S.C. § 1101(a)(43)(F).” Relying primarily on Johnson v. United States , 135 S. Ct. 2551 (2015), Alvaro- Velasco maintains that the definition of a crime of violence in § 16(b), as incorporated by reference into the definition of an aggravated felony in § 1101(a)(43)(F), 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 Alvaro-Velasco’s reasoning is foreclosed by 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 Alvaro-Velasco’s facial vagueness challenge to § 16(b) and his challenge to our application of § 16(b) on due-process grounds. [1] See id. Ac- cordingly, the motion for summary affirmance is GRANTED, and the judgment is AFFIRMED. The government’s alternate motion for an extension of time to file a brief is DENIED as unnecessary.
[*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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.
[1] The grant of certiorari on the issue whether § 16(b) is unconstitutional in light of Johnson in Lynch v. Dimaya , 2016 WL 3232911 (Sept. 29, 2016) (No. 15-1498), does not affect the analysis. This court is bound by its own precedent unless and until it is altered by a decision of the Supreme Court. See Wicker v. McCotter , 798 F.2d 155, 157–58 (5th Cir. 1986). 2
