United States v. Emiliano Saucedo-Rios

Case: 16-51239 Document: 00514038545 Page: 1 Date Filed: 06/19/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51239 FILED
Summary Calendar June 19, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EMILIANO SAUCEDO-RIOS, also known as Bernardino Saucedo-Rios,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:16-CR-408-1
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Emiliano Saucedo-Rios pleaded guilty to illegal reentry in violation of 8
U.S.C. § 1326(a) and was sentenced to 46 months of imprisonment and three
years of supervised release. He argues that the district court reversibly erred
in applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because
his Texas conviction for aggravated assault under Texas Penal Code § 22.02(a),
upon which the enhancement was based, does not have the use, attempted use,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51239 Document: 00514038545 Page: 2 Date Filed: 06/19/2017
No. 16-51239
or threatened use of force as an element of the offense and does not satisfy the
generic definition of aggravated assault.
The Government has filed an unopposed motion for summary affirmance
because the issue raised on appeal is foreclosed by United States v. Guillen-
Alvarez, 489 F.3d 197, 200-01 (5th Cir. 2007), in which we held that the Texas
offense of aggravated assault is categorically a crime of violence for purposes
of § 2L1.2(b)(1)(A)(ii). We reaffirmed the continued validity of Guillen-Alvarez
after the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243
(2016). See United States v. Shepherd, 848 F.3d 425, 428 (5th Cir. 2017).
Saucedo-Rios concedes that the sole issue raised on appeal is foreclosed
by Guillen-Alvarez, but he raises the issue to preserve it for further review.
Accordingly, summary affirmance is appropriate. See Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The Government’s motion for
summary affirmance is GRANTED, and the judgment of the district court is
AFFIRMED. The Government’s alternative motion for an extension of time to
file a brief is DENIED.
2