UNITED STATES OF AMERICA v. DANIEL GONZALEZ BAUTISTA (2016)

Daniel Gonzalez-Bautista pleaded guilty to illegal reentry having been previously removed subsequent to a conviction for an aggravated felony. He was sentenced to 84 months of imprisonment and three years of supervised release. Gonzalez-Bautista argues for the first time on appeal that the district court plainly erred by characterizing his prior Texas conviction for aggravated assault on a public servant as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) for the purposes of convicting and sentencing him under 8 U.S.C. § 1326(b)(2). Relying primarily on Johnson v. United States, 135 S. Ct. 2551 (2015), Gonzalez-Bautista argues that the definition of a crime of violence in 18 U.S.C. § 16(b), which is incorporated by reference into § 1101(a)(43)(F)'s definition of an aggravated felony, 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 Gonzalez-Bautista's arguments are foreclosed by our recent decision in 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 Gonzalez-Longoria forecloses Gonzalez-Bautista's facial vagueness challenge to § 16(b) as well as his challenge to our application of § 16(b) on due process grounds. See Gonzalez-Longoria, 831 F.3d at 672-78.

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.

PER CURIAM:*