Case: 15-41467 Document: 00513780407 Page: 1 Date Filed: 12/01/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-41467 FILED
Summary Calendar December 1, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL GONZALEZ-BAUTISTA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:15-CR-267-1
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.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41467 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.
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