     Case: 16-10587      Document: 00514108664         Page: 1    Date Filed: 08/09/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-10587
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                         August 9, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JESUS DIAZ CARDOZO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-340-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jesus Diaz Cardozo appeals the 27-month sentence imposed in
connection with his conviction for illegal reentry following deportation. He
argues that the district court plainly erred in applying the eight-level
enhancement under former U.S.S.G. § 2L1.2(b)(1)(C) (2015). He contends that
his prior conviction under Texas Penal Code (TPC) § 46.04 does not qualify as
an aggravated felony because the Texas definitions of felony and firearm are


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10587    Document: 00514108664     Page: 2   Date Filed: 08/09/2017


                                 No. 16-10587

broader than the definitions of those terms in 18 U.S.C. § 922(g)(1).        He
concedes that this court rejected these arguments in the recent decision of
United States v. Castillo-Rivera, 853 F.3d 218, 226 (5th Cir. 2017) (en banc),
petition for cert. filed (June 28, 2017) (No. 17-5054), and he raises the issue
merely to preserve it for further review.       The Government has filed an
unopposed motion for summary affirmance.
      Summary affirmance is proper where, among other instances, “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). The summary
procedure is generally reserved for cases in which the parties concede that the
issues are foreclosed by circuit precedent. See United States v. Lopez, 461 F.
App’x 372, 374 n.6 (5th Cir. 2012).
      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.




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