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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Rolando Daniel Garcia-Hernandez appeals following his guilty plea conviction and sentence for illegal reentry after deportation. He contends that the district court reversibly erred by imposing an eight-level enhancement under the aggravated felony provision of U.S.S.G. § 2L1.2(b)(1)(C) (2015), and that the district court erred by imposing judgment under 8 U.S.C. § 1326(b)(2), because his prior Texas felony conviction of assault causing bodily injury to a family/house member does not satisfy the definition of an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). In defining an aggravated felony, § 1101(a)(43)(F) incorporates the definition of a crime of violence (COV) under 18 U.S.C. § 16.
Garcia-Hernandez argues that his prior Texas conviction is not an aggravated felony pursuant to § 16(b) because § 16(b) is unconstitutionally vague on its face in light of Johnson v. United States, 135 S. Ct. 2551 (2015). He concedes that his constitutional challenge to § 16(b) 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), but he wishes to preserve the issue for possible further review.
Garcia-Hernandez also argues that his Texas conviction does not meet the definition of a COV under § 16(a); however, we need not reach that issue given the result regarding § 16(b). --------
The Government agrees that Garcia-Hernandez's challenge to § 16(b) is foreclosed by Gonzalez-Longoria, and it has filed an unopposed motion for summary affirmance. Summary affirmance is proper where, among other things, "the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case." Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
In Gonzalez-Longoria, 831 F.3d at 672-77, we analyzed the COV definition in § 16(b) in light of Johnson, and we held that § 16(b) is not unconstitutionally vague on its face. The parties therefore are correct that Gonzalez-Longoria forecloses Garcia-Hernandez's facial constitutional challenge to § 16(b). See id. Moreover, the Supreme Court recently decided Beckles v. United States, 137 S. Ct. 886, 890 (2017), wherein the Court declined to extend Johnson and held that "the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause."
In view of the foregoing, 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.