United States v. Elder Tzacir-Garcia

Case: 14-41437 Document: 00513822881 Page: 1 Date Filed: 01/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-41437
Fif h Circuit
FILED
Summary Calendar January 5, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ELDER ROCAEL TZACIR-GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:14-CR-568-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Elder Rocael Tzacir-Garcia pleaded guilty to illegal reentry and was
sentenced to 41 months of imprisonment. On appeal, he argues for the first
time that it was reversible plain error to conclude that he previously was
convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43) that qualifies
for sentence enhancement under 8 U.S.C. § 1326(b)(2). Tzacir-Garcia asserts
that his Texas robbery conviction is not an aggravated felony for purposes of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-41437 Document: 00513822881 Page: 2 Date Filed: 01/05/2017
No. 14-41437
§ 1101(a)(43)(F) because 18 U.S.C. § 16(b), which § 1101(a)(43)(F) incorporates
by reference, is unconstitutionally vague on its face in light of Johnson v.
United States, 135 S. Ct. 2551 (2015). Further, he asserts that § 16(b) cannot
be applied in this case without violating due process.
The Government has filed an unopposed motion for summary affirmance
in which it argues that Tzacir-Garcia’s Texas conviction is a crime of violence
under § 16(b) and that a challenge to that determination 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). The Government is correct
that the en banc decision forecloses a facial vagueness challenge to §16(b), and
the decision forecloses also Tzacir-Garcia’s due process challenge to our
application of § 16(b). 1 See Gonzalez-Longoria, 831 F.3d at 672-78. Also,
Tzacir-Garcia has not briefed any argument challenging whether the standard
provided by § 16(b) is unconstitutionally vague as applied to his Texas offense.
See United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).
Accordingly, the motion for summary affirmance is GRANTED, and the
district court’s judgment is AFFIRMED. The Government’s alternative motion
for an extension of time to file a brief is DENIED.
1 The recent grant of certiorari to consider whether § 16(b) is unconstitutionally vague,
see Lynch v. Dimaya, 137 S. Ct. 31 (Sept. 29, 2016) (No. 15-1498), does not change this
conclusion. 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); Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986) (noting that a grant of
certiorari does not in itself override this court’s precedent).
2