Case: 15-41209 Document: 00513738772 Page: 1 Date Filed: 10/28/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-41209 FILED
Summary Calendar October 28, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FIDEL FLORES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:15-CR-439-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Fidel Flores was convicted of illegal reentry after deportation. On
appeal, Flores contends that the district court erred by entering a judgment
reflecting that he was convicted under 8 U.S.C. § 1326(b)(2) and by applying
an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C). He argues that
his prior Texas conviction for the offense of evading arrest with a motor vehicle
is not a crime of violence because the definition of crime of violence in 18 U.S.C.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41209 Document: 00513738772 Page: 2 Date Filed: 10/28/2016
No. 15-41209
§ 16(b), as incorporated by reference into the definition of an aggravated felony
in 8 U.S.C. § 1101(a)(43)(F), is unconstitutionally vague on its face in light of
Johnson v. United States, 135 S. Ct. 2551 (2015). He further contends that we
cannot apply § 16(b) in this case without violating due process.
The Government has moved unopposed for summary affirmance in lieu
of filing a brief. Summary affirmance is proper where, among other instances,
“the position of one of the parties is clearly right as a matter of law so that
there can be no substantial question as to the outcome of the case.” United
States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006)
(internal quotation marks and citation omitted). The summary procedure is
generally reserved for cases in which the parties concede that the issues are
foreclosed by circuit precedent. United States v. Lopez, 461 F. App’x 372, 374
n.6 (5th Cir. 2012); see also United States v. Houston, 625 F.3d 871, 873 n.2
(5th Cir. 2010) (noting the denial of summary affirmance where an issue was
not foreclosed). 1
Our recent decision in United States v. Gonzalez-Longoria, ___ F.3d ___,
No. 15-40041, 2016 WL 4169127, at *2-*6 (5th Cir. Aug. 5, 2016) (en banc),
forecloses relief on Flores’s argument that in light of Johnson, § 16(b) is
unconstitutionally vague on its face. 2 However, Flores also raises an as-
applied challenge. In Gonzalez-Longoria, we addressed an as-applied
challenge to the appellant’s prior conviction of the Texas offense of Assault
1 See Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (unpublished opinions
issued after January 1, 1996 are not controlling precedent but may be considered persuasive
authority); 5th Cir. R. 47.5.
2 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, ___ S. Ct. ___,
No. 15-1498, 2016 WL 3232911 (Sept. 29, 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
Case: 15-41209 Document: 00513738772 Page: 3 Date Filed: 10/28/2016
No. 15-41209
Causing Bodily Injury with a Prior Conviction of Family Violence and
concluded that the standard provided by § 16(b) could be “straightforwardly
applied” to the offense. 2016 WL 4169127, at *5. Our opinion in Gonzalez-
Longoria does not foreclose relief on Flores’s as-applied challenge regarding
his offense of evading arrest with a motor vehicle. Accordingly, summary
affirmance is not appropriate in this case. See United States v. Holy Land
Found. for Relief & Dev., 445 F.3d at 781.
Nevertheless, the standard of § 16(b) can be straightforwardly applied to
Flores’s prior conviction, and § 16(b) is not unconstitutionally vague as applied
to him. See 2016 WL 4169127, at *5; see also United States v. Sanchez-
Ledezma, 630 F.3d 447, 450-51 (5th Cir. 2011). Thus, there was no error in the
district court’s determination that Flores’s prior conviction for evading arrest
with a motor vehicle is an aggravated felony for purposes of § 2L1.2(b)(1)(C)
and § 1326(b)(2). In light of our conclusion, further briefing is not necessary.
The motions for summary affirmance and for an extension of time to file
a brief are DENIED. The judgment of the district court is AFFIRMED.
3