     Case: 15-41013      Document: 00513792982         Page: 1    Date Filed: 12/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fif h Circuit
                                    No. 15-41013                                  FILED
                                  Summary Calendar                        December 12, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HELBER VALDEZ, also known as Helber Valdez Carrion,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:15-CR-208-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Helber Valdez pleaded guilty to illegal reentry and was sentenced to 30
months in prison. For the first time on appeal, Valdez argues that the district
court committed reversible plain error when it determined that he previously
was convicted of an “aggravated felony” pursuant to 8 U.S.C. § 1101(a)(43) that
rendered him eligible for an increased statutory maximum sentence under 8
U.S.C. § 1326(b)(2). He asserts that his California conviction for aggravated


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41013       Document: 00513792982         Page: 2    Date Filed: 12/12/2016


                                      No. 15-41013

assault is not an “aggravated felony” because he was not sentenced to at least
one year in prison for that offense and that his Texas conviction for burglary
of a building is not an “aggravated felony” because the crime is not a generic
burglary offense for purposes of § 1101(a)(43)(G) or a “crime of violence” under
§ 1101(a)(43)(F). Principally, Valdez contends that the Texas offense is not a
“crime of violence” because, in light of Johnson v. United States, 135 S. Ct. 2551
(2015), 18 U.S.C. § 16(b), which § 1101(a)(43)(F) incorporates by reference, is
unconstitutionally vague on its face. He further asserts that § 16(b) cannot be
applied in this case without violating due process.
       The Government has filed an unopposed motion for summary affirmance
in which it argues that we need not resolve whether Valdez’s prior California
conviction is an “aggravated felony” or whether his past Texas conviction for
burglary of a building qualifies as generic burglary; the Government contends
that Valdez’s Texas conviction is a “crime of violence” under § 16(b), and his
challenge to that determination is 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).
       Valdez does not dispute that his Texas conviction is a “crime of violence”
pursuant to § 16(b) and, thus, an “aggravated felony” under § 1101(a)(43)(F).
He contends only that § 16(b) is unconstitutionally vague. The Government is
correct that Gonzalez-Longoria forecloses Valdez’s facial vagueness challenge
to § 16(b), as well as his challenge to our application of § 16(b) on due process
grounds. 1 See Gonzalez-Longoria, 831 F.3d at 672-78. He has not briefed any
argument challenging whether the standard provided by § 16(b) is

       1The recent grant of certiorari by the United States Supreme Court on the issue
whether § 16(b) is unconstitutional in light of Johnson in Lynch v. Dimaya, No. 15-1498, 2016
WL 3232911 (U.S. Sept. 29, 2016), does not alter the analysis. We are bound by our own
precedent unless and until that precedent is altered by a decision of the Supreme Court. See
Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).


                                             2
    Case: 15-41013    Document: 00513792982     Page: 3   Date Filed: 12/12/2016


                                 No. 15-41013

unconstitutionally vague as applied to his prior Texas offense. See United
States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).
      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.




                                       3
