     Case: 14-41385      Document: 00513795752         Page: 1    Date Filed: 12/13/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 14-41385                               FILED
                                  Summary Calendar                     December 13, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARIO ALBERTO AMAYA-GUERRERO, also known as Mario A. Amaya,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:14-CR-527-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Mario Alberto Amaya-Guerrero pleaded guilty to illegal reentry by a
previously deported alien in violation of 8 U.S.C. § 1326. The district court
sentenced Amaya-Guerrero to 30 months of imprisonment−a sentence at the
top of the recommended guideline imprisonment range. On appeal, Amaya-
Guerrero challenges the 8-level “aggravated felony” enhancement he received
under U.S.S.G. § 2L1.2(b)(1)(C) based on his prior state conviction for injury to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-41385       Document: 00513795752         Page: 2    Date Filed: 12/13/2016


                                      No. 14-41385

a child in violation of TEX. PENAL CODE § 22.04. He argues that the definition
of “aggravated felony,” which includes a “crime of violence” as defined in 18
U.S.C. § 16(b), is void for vagueness.
       The Government has filed an unopposed motion for summary
affirmance, urging that Amaya-Guerrero’s arguments are foreclosed by this
court’s recent decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th
Cir. 2016) (en banc), pet. for cert. filed (Sept. 29, 2016) (No. 16-6259). The
Government is correct that Gonzalez-Longoria forecloses Amaya-Guerrero’s
facial vagueness challenge to § 16(b), 1 see id., and Amaya-Guerrero does not
make a separate as-applied challenge to § 16(b)’s application to his prior Texas
offense for injury to a child. 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 Although the Supreme Court recently granted certiorari on the question of whether
§ 16(b) is unconstitutionally vague, see Lynch v. Dimaya, 2016 WL 3232911 (Sept. 29, 2016)
(No. 15-1498), 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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