     Case: 15-41467      Document: 00513780407         Page: 1    Date Filed: 12/01/2016




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


                                    No. 15-41467                             FILED
                                  Summary Calendar                    December 1, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DANIEL GONZALEZ-BAUTISTA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-267-1


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Daniel Gonzalez-Bautista pleaded guilty to illegal reentry having been
previously removed subsequent to a conviction for an aggravated felony. He
was sentenced to 84 months of imprisonment and three years of supervised
release. Gonzalez-Bautista argues for the first time on appeal that the district
court plainly erred by characterizing his prior Texas conviction for aggravated
assault on a public servant as an aggravated felony under 8 U.S.C.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41467       Document: 00513780407   Page: 2   Date Filed: 12/01/2016


                                  No. 15-41467

§ 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), Gonzalez-Bautista 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 Gonzalez-Bautista’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 Gonzalez-Bautista’s
facial vagueness challenge to § 16(b) as well as his challenge to our application
of § 16(b) on due process grounds. See Gonzalez-Longoria, 831 F.3d at 672-78.
      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.




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