United States v. Daniel Larios-Villatoro , 684 F. App'x 411 ( 2017 )

Case: 16-20194 Document: 00513939470 Page: 1 Date Filed: 04/04/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-20194 FILED
Summary Calendar April 4, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL LARIOS-VILLATORO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-629-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Daniel Larios-Villatoro appeals the 18-month sentence imposed when he
pleaded guilty to being in the United States illegally after being deported. He
contends that his offense level was improperly increased by eight levels due to
a 2011 conviction for illegal reentry. He argues that the previous illegal
reentry conviction should not have been treated as an “aggravated felony”
because the 1996 Nebraska attempted-arson conviction that rendered the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20194 Document: 00513939470 Page: 2 Date Filed: 04/04/2017
No. 16-20194
illegal reentry aggravated was itself not an aggravated felony. We need not
revisit the underlying Nebraska felony because Larios-Villatoro concedes that
the prior illegal reentry offense was an aggravated felony when he pleaded
guilty in 2011. See United States v. Gamboa-Garcia, 620 F.3d 546, 548-49 (5th
Cir. 2010).
Moreover, Larios-Villatoro fails to show that the Nebraska conviction
was not an aggravated felony. He contends that could only qualify as an
aggravated felony under the residual definition of “crime of violence” found at
18 U.S.C. § 16(b), which he says is unconstitutional in light of Johnson v.
United States, 135 S. Ct. 2551 (2015). That contention is foreclosed. See
United States v. Gonzalez-Longoria, 831 F.3d 670, 675-77 (5th Cir. 2016) (en
banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259). The Government’s
motion for summary affirmance is granted. We deny, as unnecessary, its
alternative motion for an extension of time for briefing, and we affirm the
judgment of the district court.
Larios-Villatoro moves for a stay of the appeal until the Supreme Court
decides whether § 16(b) is unconstitutionally vague in Lynch v. Dimaya, 137
S. Ct. 31 (2016) (granting certiorari). The motion is denied. Gonzalez-Longoria
is binding precedent unless overruled by this court en banc or by the Supreme
Court. See United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002).
A grant of certiorari does not in itself override this court’s precedent. See
Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).
JUDGMENT AFFIRMED; MOTION FOR SUMMARY AFFIRMANCE
GRANTED; MOTION FOR AN EXTENSION OF TIME DENIED, MOTION
TO STAY APPEAL DENIED.
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