     Case: 15-41661      Document: 00514275397         Page: 1    Date Filed: 12/15/2017




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

                                      No. 15-41661
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                           December 15, 2017

UNITED STATES OF AMERICA,                                                     Lyle W. Cayce
                                                                                   Clerk
              Plaintiff - Appellee

v.

JOSE MARIO RUBIO-SORTO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:15-CR-677-1


Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Jose Mario Rubio-Sorto pleaded guilty without a plea agreement to
illegal reentry following deportation in violation of 8 U.S.C § 1326. The
presentence report calculated Rubio-Sorto’s total offense level as 21, which
included a 16-level crime of violence enhancement under U.S.S.G. §
2L1.2(b)(1)(A)(ii) based upon Rubio-Sorto’s 2012 Illinois conviction for second
degree murder. The PSR calculated Rubio-Sorto’s Guidelines range as 46–57


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-41661
months. The district court adopted the findings and recommendations in the
PSR and sentenced Rubio-Sorto to 57 months’ imprisonment and 3 years’
supervised release.
        Rubio-Sorto raises two issues on appeal, neither of which he raised
below. First, he argues that the district court erroneously applied the 16-level
enhancement because his Illinois conviction for second degree murder did not
constitute a crime of violence under the Sentencing Guidelines. Second, he
contends that he was erroneously convicted under § 1326(b)(2) for having been
deported after being convicted of an aggravated felony. Review is for plain error
only.
        A. Crime of Violence Enhancement
        A defendant convicted of illegal reentry is subject to a 16-level
enhancement if he was previously deported after a felony conviction for a crime
of violence, and the conviction received criminal history points under Chapter
Four of the Guidelines. See § 2L1.2(b)(1)(A)(ii). For purposes of the
enhancement, crimes of violence include an enumerated list—including
murder—as well as any crime “that has as an element the use, attempted use,
or threatened use of physical force against the person of another.” § 2L1.2,
n.1(B)(iii).
        Rubio-Sorto argues that Illinois second degree murder does not fit within
the generic definition of “murder” for purposes of the Guidelines, nor does it
have as an element the use or threatened use of force. This court recently faced
an almost identical argument. In United States v. Hernandez-Morales, 681 F.
App’x 362 (5th Cir. 2017), the defendant also argued that his prior Illinois
conviction for second degree murder did not qualify as a crime of violence for
purposes of § 2L1.2(b)(1)(A)(ii). Review in that case was also for plain error.
We noted that “we have never before considered whether the Illinois . . .
murder statute is broader than the enumerated offense of murder, nor have we
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even adopted a definition of generic murder.” Id. at 366. We have repeatedly
explained that “[w]e ordinarily do not find plain error when we have not
previously addressed an issue.” Id. (internal quotation marks omitted) (quoting
United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009)). Accordingly, “[i]n
the absence of any authority on point, we . . . decline to conclude that any error
committed by the district court was plain.” Id.
      B. Aggravated Felony
      Rubio-Sorto also contends that the district court erred in entering
judgment against him under § 1326(b)(2), because his Illinois conviction for
second degree murder did not qualify as an aggravated felony under 8 U.S.C.
§ 1101(a)(43). That provision lists “murder” as an aggravated felony, see
§ 1101(a)(43)(A), and further incorporates the definition of “crime of violence”
as articulated in 18 U.S.C. § 16. See 8 U.S.C. § 1101(a)(43)(F). 18 U.S.C. § 16
in turn includes two provisions: (a) defines crime of violence in relevant part
as “an offense that has as an element the use, attempted use, or threatened
use of physical force”; and (b) includes “any other offense that is a felony and
that, by its nature, involves a substantial risk that physical force . . . may be
used in the course of committing the offense.” Rubio-Sorto argues that Illinois
second degree murder does not fall under “murder” as defined in § 1101(a)(43),
nor does it contain the use of force element required under § 16(a). He does not
argue that Illinois second degree murder falls outside the scope of § 16(b), but
argues that § 16(b) has been declared unconstitutionally vague by Johnson v.
United States, 135 S. Ct. 2251 (2015).
      Rubio-Sorto’s argument as to the facial unconstitutionality of § 16(b) is
foreclosed by this court’s opinion in United States v. Gonzalez-Longoria, 831
F.3d 670, 677 (5th Cir. 2016) (en banc) (“[W]e hold that 18 U.S.C. § 16(b) is not
unconstitutionally vague on its face.”). Gonzalez-Longoria does not foreclose
Rubio-Sorto’s   argument      insofar    as   he    contends    that   § 16(b)    is
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unconstitutionally vague as applied to this particular case. 1 See id. at 677–78
(rejecting facial attack on § 16(b) but then giving full consideration to as-
applied challenge). Nonetheless, because our review is for plain error only, and
because Rubio-Sorto does not cite to any on-point authority suggesting that
§ 16(b) is unconstitutionally vague as applied here, we decline to say that the
district court erred in entering judgment against Rubio-Sorto under 8 U.S.C. §
1326(b)(2). See Hernandez-Morales, 681 F. App’x at 366. Since this provides a
sufficient basis for affirming, we express no opinion on whether Illinois second
degree murder qualifies as “murder” under § 1101(a)(43)(A), or whether it
contains the use of force element required under § 16(a).
       We AFFIRM the judgment of the district court.




1  Rubio-Sorto’s brief does not expressly state whether his challenge to § 16(b) is a facial or
an as-applied challenge. As the Supreme Court has recognized, however, “the distinction
between facial and as-applied challenges is not so well defined that it has some automatic
effect or that it must always control the pleadings and disposition in every case involving a
constitutional challenge.” Citizens United v. FEC, 558 U.S. 310, 331 (2010). That distinction
is particularly difficult to draw in cases involving the categorical approach and § 16(b)’s
residual clause.
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