Case: 16-40027 Document: 00513765118 Page: 1 Date Filed: 11/18/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40027 FILED
Summary Calendar November 18, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GENARO MAYORGA-SALAZAR,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:15-CR-102-1
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Genaro Mayorga-Salazar was convicted of being an alien unlawfully
found in the United States after a previous deportation. On appeal, Mayorga-
Salazar contends that the district court erred 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. § 16(b), as
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-40027
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).
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.” Groendyke
Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 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, 831 F.3d 670,
674-77 (5th Cir. 2016) (en banc), cert. filed, No. 16-6259 (Sept. 29, 2016),
forecloses relief on Mayorga-Salazar’s argument that in light of Johnson,
§ 16(b) is unconstitutionally vague on its face. 2 However, Mayorga-Salazar
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 Causing Bodily Injury with a Prior Conviction of Family Violence and
concluded that the standard provided by § 16(b) could be “straightforwardly
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. ___,
2016 WL 3232911 (Sept. 29, 2016) (No. 15-1498), 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).
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No. 16-40027
applied” to the offense. Gonzalez-Longoria, 831 F.3d at 677-78. Our opinion
in Gonzalez-Longoria does not foreclose relief on Mayorga-Salazar’s as-applied
challenge regarding his offense of evading arrest with a motor vehicle.
Accordingly, summary affirmance is not appropriate in this case. See
Groendyke, 406 F.2d at 1162.
Nevertheless, the standard of § 16(b) can be straightforwardly applied to
Mayorga-Salazar’s prior conviction, and § 16(b) is not unconstitutionally vague
as applied to him. See Gonzalez-Longoria, 831 F.3d at 677-78; 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 Mayorga-Salazar’s prior
conviction for evading arrest with a motor vehicle is an aggravated felony for
purposes of § 2L1.2(b)(1)(C). 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.
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