Case: 16-20785 Document: 00514059779 Page: 1 Date Filed: 07/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-20785
Fifth Circuit
FILED
Summary Calendar July 5, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
MARIO DELGADO CRUZ, also known as Mario Delgado, also known as Mario
Cruz Delgado, also known as Daniel Delgado, also known as Mario Cruz-
Delgado,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CR-168-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Mario Delgado Cruz appeals following his guilty plea conviction and
sentence for illegal reentry. He asserts that the district court reversibly erred
by convicting, sentencing, and entering judgment against him under 8 U.S.C.
§ 1326(b)(2) based upon its determination that his prior Texas conviction for
burglary of a habitation qualified as a “crime of violence” under
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20785 Document: 00514059779 Page: 2 Date Filed: 07/05/2017
No. 16-20785
18 U.S.C. § 16(b) and therefore an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(F).
Cruz argues that the definition of a “crime of violence” in § 16(b) is
unconstitutionally vague on its face in light of the Supreme Court’s holding in
Johnson v. United States, 135 S. Ct. 2551 (2015). 1 He concedes that his
constitutional challenge to § 16(b) 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 has filed an unopposed motion for
summary affirmance based on Cruz’s concession.
The parties are correct that Gonzalez-Longoria forecloses Cruz’s facial
constitutional challenge to § 16(b). See Gonzalez-Longoria, 831 F.3d at 672-77.
Cruz also moves to hold the appeal in abeyance until the Supreme Court
decides whether § 16(b) is unconstitutionally vague in Sessions v. Dimaya, 137
S. Ct. 31 (2016) (granting certiorari). Gonzalez-Longoria is binding precedent
unless overruled by this court en banc or by the Supreme Court, and a grant
of certiorari does not override this court’s precedent. See Wicker v. McCotter,
798 F.2d 155, 157-58 (5th Cir. 1986).
Accordingly, the motion for summary affirmance is GRANTED, and the
district court’s judgment is AFFIRMED. The Government’s alternative motion
for an extension of time to file a brief and Cruz’s motion to hold the appeal in
abeyance are DENIED.
1 While Cruz also argues that his Texas conviction does not constitute an “aggravated
felony” under § 1101(a)(43)(G) (i.e., “a . . . burglary offense for which the term of imprisonment
[is] at least one year”) because the Texas burglary statute sweeps more broadly than the
generic definition of burglary, we need not reach that issue given the result regarding § 16(b).
2