United States v. Omar Rodriguez ( 2017 )

Case: 17-40041 Document: 00514072240 Page: 1 Date Filed: 07/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40041 FILED
Summary Calendar July 13, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OMAR ORLANDO RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-1314-1
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Omar Orlando Rodriguez pleaded guilty to illegal reentry following
deportation and was sentenced to a 33-month term of imprisonment. On
appeal, he renews his challenge to the district court’s application of the
eight-level aggravated felony enhancement of U.S.S.G. § 2L1.2(b)(1)(C). The
gravamen of his position is that, in light of Johnson v. United States, 135 S. Ct.
2551 (2015), the definition of a crime of violence in 18 U.S.C. § 16(b) is
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40041 Document: 00514072240 Page: 2 Date Filed: 07/13/2017
No. 17-40041
unconstitutionally vague on its face. Therefore, he contends, his Texas
conviction of evading arrest with a motor vehicle does not qualify as a crime of
violence under § 16(b) and thus is not an aggravated felony for purposes of 8
U.S.C. § 1101(a)(43)(F) and § 2L1.2(b)(1)(C).
As Rodriguez concedes, his argument is foreclosed by United States v.
Gonzalez-Longoria, 831 F.3d 670, 672-77 (5th Cir. 2016) (en banc), petition for
cert. filed (Sept. 29, 2016) (No. 16-6259), in which we rejected a constitutional
challenge to § 16(b) as facially vague.
Accordingly, Rodriguez’s unopposed motion for summary disposition is
GRANTED, and the district court’s judgment is AFFIRMED. Rodriguez’s
alternative motion to hold his appeal in abeyance pending decisions by the
Supreme Court in Gonzalez-Longoria and Sessions v. Dimaya, 137 S. Ct. 31
(2016) is DENIED. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir.
1986).
2