     Case: 16-40928      Document: 00514141262         Page: 1    Date Filed: 09/01/2017




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

                                      No. 16-40928
                                                                                 Fifth Circuit

                                                                               FILED
                                                                       September 1, 2017

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

v.

MIGUEL AGUSTIN RODRIGUEZ-LOPEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:15-CR-1749-1


Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Miguel Agustin        Rodriguez-Lopez challenges the district court’s
characterization of his robbery conviction as a “crime of violence” under the
2015 United States Sentencing Guidelines. Rodriguez-Lopez pleaded guilty,
without a plea agreement, to being found in the U.S. after previous deportation
in violation of 8 U.S.C. § 1326. Adopting the recommendation of the United
States Probation Office’s presentencing investigation report, and over his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40928    Document: 00514141262     Page: 2   Date Filed: 09/01/2017



                                 No. 16-40928
objection, the district court found that Rodriguez-Lopez had previously been
deported following a crime of violence, triggering the 16-level Guidelines
enhancement. This was offset by a 3-level reduction for acceptance of
responsibility, resulting in a total offense level of 21. Rodriguez-Lopez was
assigned 10 criminal history points, including 3 points for one of his Texas
robbery convictions and 1 point for the other. With a total offense level of 21
and a Category V criminal history score, he faced a Guidelines range of 70–87
months’ imprisonment. The district court sentenced Rodriguez-Lopez to 70
months.
      On appeal, Rodriguez-Lopez argues that it was error for the district court
to characterize his prior convictions for robbery under Texas law as crimes of
violence within the Guidelines, resulting in more criminal history points than
he deserved. He reasons that the residual clause of USSG § 4B1.2(a)(2) (2015),
as it read when he was sentenced, is unconstitutional in light of Johnson v.
United States, 135 S. Ct. 2551 (2015), in which the Supreme Court held that
nearly identical language in the Armed Career Criminal Act was
unconstitutionally vague. However, he concedes that this position, and
therefore his appeal, is foreclosed by circuit precedent. Nonetheless, he filed
this appeal in hopes that the Supreme Court would decide the then-pending
Beckles v. United States favorably to him. While this case was pending, the
Court decided Beckles adversely to Rodriguez-Lopez, holding that the
Sentencing Guidelines are not subject to constitutional vagueness challenges.
137 S. Ct. 886, 890 (2017). That opinion disposes of Rodriguez-Lopez’s only
issue on appeal. See also United States v. Martinez, No. 15-41422, 2017 WL
1063450 (5th Cir. Mar. 20, 2017) (unpublished). The judgment of the district
court is
AFFIRMED.


                                       2
