United States v. Daniel Bello , 670 F. App'x 354 ( 2016 )

Case: 15-20755 Document: 00513762436 Page: 1 Date Filed: 11/16/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-20755
Fifth Circuit
FILED
Summary Calendar November 16, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
DANIEL GARCIA BELLO,
Also Known as Daniel Bello, Also Known as Daniel Garcia,
Also Known as Daniel Belo, Also Known as Daniel R. Garcia,
Also Known as Daniel Rodrigo Garcia, Also Known as Daniel Garcia-Belo,
Defendant–Appellant,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-423-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Daniel Garcia Bello was convicted of illegal reentry by a previously
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20755 Document: 00513762436 Page: 2 Date Filed: 11/16/2016
No. 15-20755
deported alien after an aggravated felony. He contends that the district court
erred by classifying his evading-arrest conviction as an aggravated felony
under 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(C). He reasons that his
Texas conviction of evading arrest with a motor vehicle is not a crime of
violence because the definition of that term in 18 U.S.C. § 16(b), as incorpor-
ated 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). He further maintains that we cannot
apply § 16(b) without violating due process.
The government moves 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.” United
States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006)
(internal quotation marks and citation omitted). 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).
Our decision in United States v. Gonzalez-Longoria, 831 F.3d 670, 672–
77 (5th Cir. 2016) (en banc), forecloses relief on Bello’s argument that in light
of Johnson, § 16(b) is unconstitutionally vague on its face. 1 Bello, however,
also raises an as-applied challenge. In Gonzalez-Longoria, id. at 677–78, we
1The grant of certiorari on the issue whether § 16(b) is unconstitutional in light of
Johnson in Lynch v. Dimaya, No. 15-1498, 2016 WL 3232911 (Sept. 29, 2016), does not alter
the analysis. This court is bound by its own precedent unless and until it is altered by the
Supreme Court. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).
2
Case: 15-20755 Document: 00513762436 Page: 3 Date Filed: 11/16/2016
No. 15-20755
addressed an as-applied challenge to a 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
applied” to the offense. Because Gonzalez-Longoria does not foreclose relief on
Bello’s as-applied challenge regarding his offense of evading arrest with a
motor vehicle, summary affirmance is not appropriate. See Holy Land Found.,
445 F.3d at 781.
Nevertheless, the standard of § 16(b) can be straightforwardly applied to
Bello’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 Bello’s conviction of evading
arrest with a motor vehicle is an aggravated felony for purposes of § 2L1.2(b)-
(1)(C) and § 1326(b)(2). 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 is AFFIRMED.
3