Case: 16-40072 Document: 00513768100 Page: 1 Date Filed: 11/21/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40072 FILED
Summary Calendar November 21, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RUDY MARTINEZ-CASTILLO, also known as Maurio Gonzales, also known
as Alfredo Noges-Saucedo, also known as Redolfo Martinez-Castillo, also
known as Alfredo Martinez-Savavedra,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-204-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Rudy Martinez-Castillo appeals the sentence imposed following his
guilty plea conviction for illegal reentry following deportation in violation of 8
U.S.C. § 1326. He contends that the district court committed reversible plain
error by classifying his 1989 Texas conviction for burglary of a vehicle as an
aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C) and § 1326(b)(2).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40072 Document: 00513768100 Page: 2 Date Filed: 11/21/2016
No. 16-40072
He argues that Texas burglary of a vehicle does not qualify as an aggravated
felony pursuant to 8 U.S.C. § 1101(a)(43)(G) because it is not a generic burglary
offense as defined in Taylor v. United States, 495 U.S. 575, 598 (1990). He also
argues that Texas burglary of a vehicle does not qualify as an aggravated
felony pursuant to § 1101(a)(43)(F) because, under the reasoning in Johnson v.
United States, 135 S. Ct. 2551 (2015), the crime of violence definition in 18
U.S.C. § 16(b) is unconstitutionally vague on its face.
The Government has filed an unopposed motion for summary affirmance
asserting that Martinez-Castillo’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). In the
alternative, the Government requests an extension of time in which to file a
brief on the merits.
The Government is correct that Gonzalez-Longoria forecloses Martinez-
Castillo’s facial vagueness challenge to § 16(b). 1 See id. at 677. Thus, we need
not determine whether his Texas burglary of a vehicle conviction, or any other
prior conviction, qualifies as an aggravated felony under other provisions of
§ 1101(a)(43). Accordingly, the Government’s motion for summary affirmance
is GRANTED, the alternative motion for an extension of time to file a brief is
DENIED, and the judgment of the district court is AFFIRMED.
1 The Supreme Court’s recent grant of certiorari 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 our analysis. We are bound by our 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