United States v. Jose Lara-Garcia

Case: 15-40108 Document: 00513784133 Page: 1 Date Filed: 12/05/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40108 FILED
Summary Calendar December 5, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE LARA-GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:14-CR-9-1
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Following his guilty plea conviction for illegal reentry after removal, Jose
Lara-Garcia was sentenced within the recommended guidelines range to 46
months of imprisonment. Lara-Garcia argues that the district court erred by
convicting, sentencing, and entering judgment against him pursuant to 18
U.S.C. § 1326(b)(2) based upon its determination that his 2012 conviction for
aggravated assault with a deadly weapon in violation of Texas Penal Code
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40108 Document: 00513784133 Page: 2 Date Filed: 12/05/2016
No. 15-40108
§ 22.02(a)(2) qualified as a conviction for a crime of violence under 18 U.S.C.
§ 16(b) and thus one for an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
Relying primarily on Johnson v. United States, 135 S. Ct. 2551 (2015), he
argues that the definition of a crime of violence in § 16(b), as incorporated by
reference into the definition of an aggravated felony in § 1101(a)(43)(F), is
unconstitutionally vague on its face. He further contends that this court
cannot apply § 16(b) in this case without violating due process.
The Government has filed an unopposed motion for summary
affirmance, urging that Lara-Garcia’s arguments are foreclosed by our decision
in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc),
petition for cert. filed (Sept. 30, 2016) (No. 16-6259). The Government is correct
that Gonzalez-Longoria forecloses Lara-Garcia’s facial vagueness challenge to
§ 16(b) and his challenge to our application of § 16(b) on due process grounds. 1
See id. Accordingly, the motion for summary affirmance is GRANTED, and
the district court’s judgment is AFFIRMED. The Government’s alternate
motion for an extension of time to file a brief is DENIED.
1The 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. ___,
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).
2