     Case: 15-40761      Document: 00513783663         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. 15-40761                                     FILED
                                  Summary Calendar                            December 5, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLOS ALBERTO PEREZ-DE LEON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-913-1


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Following the entry of his guilty plea conviction of illegal reentry, Carlos
Alberto Perez-De Leon was sentenced to 66 months of imprisonment, based in
part on a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) for his
prior conviction of the Texas offense of aggravated assault with a deadly
weapon under TEX. PENAL CODE § 22.02. Perez-De Leon argues for the first
time on appeal that the district court plainly erred by characterizing his 2004


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40761      Document: 00513783663            Page: 2   Date Filed: 12/05/2016


                                     No. 15-40761

conviction for the Texas offense of aggravated assault with a deadly weapon 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), Perez-De Leon 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 Perez-De Leon’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 Perez-De Leon’s
facial vagueness challenge to § 16(b) as well as 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.




      1 The 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) (No. 15-1498), does not alter our 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).


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