United States v. Jose Olivarez ( 2016 )

Case: 15-20637 Document: 00513739200 Page: 1 Date Filed: 10/28/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20637 FILED
Summary Calendar October 28, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE SANCHEZ OLIVAREZ, also known as Jose G. Sanchez, also known as
Jose Guadalup Olivarez Sanchez, also known as Jose Guadalupe Olivare
Sanchez, also known as Jose Guadalupe Sanchez-Olivarez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-355-1
Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
Jose Sanchez Olivarez was convicted of illegal reentry after deportation.
On appeal, Sanchez Olivarez contends that the district court erred by entering
a judgment reflecting that he was convicted under 8 U.S.C. § 1326(b)(2) and 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
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-20637
motor vehicle is not a crime of violence because the definition of crime of
violence in 18 U.S.C. § 16(b), as 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 and as applied to him 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.” 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). 1
Our recent decision in United States v. Gonzalez-Longoria, ___ F.3d ___,
No. 15-40041, 2016 WL 4169127, at *2-*6 (5th Cir. Aug. 5, 2016) (en banc),
petition for cert. filed (Sept. 29, 2016) (No. 16-6259), forecloses relief on Sanchez
Olivarez’s argument that in light of Johnson, § 16(b) is unconstitutionally
vague on its face. 2 However, Sanchez Olivarez also raises an as-applied
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. ___,
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 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. 15-20637
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 applied” to the
offense. 2016 WL 4169127, at *5. Our opinion in Gonzalez-Longoria does not
foreclose relief on Sanchez Olivarez’s as-applied challenge regarding his
offense of evading arrest with a motor vehicle. Accordingly, summary
affirmance is not appropriate in this case. See Holy Land Found. for Relief &
Dev., 445 F.3d at 781.
Nevertheless, the standard of § 16(b) can be straightforwardly applied to
Sanchez Olivarez’s prior conviction, and § 16(b) is not unconstitutionally vague
as applied to him. See Gonzalez-Longoria, 2016 WL 4169127, at *5; 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 Sanchez Olivarez’s
prior conviction for 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 of the district court is AFFIRMED.
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