     Case: 17-40227      Document: 00514275206         Page: 1    Date Filed: 12/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 17-40227                                    FILED
                                  Summary Calendar                          December 15, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ESTEBAN CASABON-RAMIREZ, also known as Esteban Casabon,


                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:16-CR-714-1


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Esteban Casabon-Ramirez appeals following his guilty plea conviction
and sentence for illegal reentry. He asserts that the district court plainly erred
by convicting, sentencing, and entering judgment against him under 8 U.S.C.
§ 1326(b)(2) based upon its determination that his prior New York conviction




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40227     Document: 00514275206         Page: 2    Date Filed: 12/15/2017


                                      No. 17-40227

for sexual abuse qualified as a “crime of violence” under 18 U.S.C. § 16(b) and
therefore an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F).
       Casabon-Ramirez argues that the definition of a “crime of violence” in
§ 16(b) is unconstitutionally vague on its face in light of the Supreme Court’s
holding in Johnson v. United States, 135 S. Ct. 2551 (2015). 1 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). The Government has filed a motion for
summary affirmance based on Casabon-Ramirez’s concession.
       The parties are correct that Gonzalez-Longoria forecloses Casabon-
Ramirez’s facial constitutional challenge to § 16(b). See Gonzalez-Longoria,
831 F.3d at 672-77. The Government also moves, in the alternative, to stay
the    appeal   until    the   Supreme      Court     decides    whether     §   16(b)   is
unconstitutionally vague in Sessions v. Dimaya, 137 S. Ct. 31 (2016) (granting
certiorari). Gonzalez-Longoria is binding precedent unless overruled by this
court en banc or by the Supreme Court, and a grant of certiorari does not
override this court’s precedent. See Wicker v. McCotter, 798 F.2d 155, 157-58
(5th Cir. 1986).
       Accordingly, the motion for summary affirmance is GRANTED, and the
district court’s judgment is AFFIRMED.                The Government’s alternative
motions to stay the appeal and for an extension of time to file a brief are
DENIED.




       1 Although Casabon-Ramirez also argues that his New York conviction does not
constitute an “aggravated felony” under § 16(a) because the New York sexual abuse statute
sweeps more broadly than the generic definition of crime of violence, we need not reach that
issue given the result regarding § 16(b).


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