United States v. Francisco Gutierrez-Lopez ( 2017 )

Case: 16-11469 Document: 00514110781 Page: 1 Date Filed: 08/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11469 FILED
Summary Calendar August 10, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO GUTIERREZ-LOPEZ, also known as Jesus Aguilar, also known
as Jorge Alberto Gutierrez-Rodriguez, also known as Jesus Fuentes, also
known as Jorge Lopez-Perez, also known as Juan Jose Espinoza, also known
as Noel Torres,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-11-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Francisco Gutierrez-Lopez challenges the 35-month sentence he received
following his guilty plea conviction for illegal reentry. The Government moves
for summary affirmance or, alternatively, for an extension of time to file an
appellate brief. Summary affirmance is proper where, among other instances,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11469 Document: 00514110781 Page: 2 Date Filed: 08/10/2017
No. 16-11469
“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).
Gutierrez first raises an argument that is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 228, 235 (1998), which held that
convictions used to enhance a sentence under 8 U.S.C. § 1326(b)(2) need not be
set forth in the indictment. He also raises an argument that 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). In Gonzalez-Longoria, we
held that 18 U.S.C. § 16(b), which defines a crime of violence when incorporated
by reference into U.S.S.G. § 2L1.2(b)(1)(C) (2014), is not unconstitutionally
vague on its face in light of Johnson v. United States, 135 S. Ct. 2551 (2015).
Gonzalez-Longoria, 831 F.3d at 672.
Accordingly, the motion for summary affirmance is GRANTED, and the
district court’s judgment is AFFIRMED. Groendyke Transport, Inc., 406 F.2d
at 1162. The Government’s alternative motion for an extension of time to file
a brief is DENIED.
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