     Case: 15-41034      Document: 00513803448         Page: 1    Date Filed: 12/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals

                                    No. 15-41034
                                                                                   Fif h Circuit

                                                                                 FILED
                                  Summary Calendar                       December 19, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

HECTOR ALEXANDER CABRERA,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-198-1




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Hector Cabrera was convicted of being unlawfully present in the United



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41034

States after removal and was sentenced to a 38-month term of imprisonment.
He contends that the district court erred by applying an eight-level aggravated-
felony enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (2014) and by entering a
judgment reflecting that he was convicted and sentenced under 8 U.S.C.
§ 1326(b)(2). He contends that his Texas conviction of evading arrest with a
motor vehicle is not an aggravated felony because the definition of “crime of
violence” in 18 U.S.C. § 16(b), which is incorporated by reference into the defi-
nition of an aggravated felony in 8 U.S.C. § 1101(a)(43)(F) and thus applies for
purposes of § 2L1.2(b)(1)(C), is unconstitutionally vague on its face and as
applied to him in light of Johnson v. United States, 135 S. Ct. 2551 (2015).

      Cabrera raised no sentencing objections in the district court, so our
review is only for plain error, see United States v. Juarez, 626 F.3d 246, 253–
54 (5th Cir. 2010), meaning that Cabrera must identify (1) a forfeited error
(2) that is clear and obvious and (3) that affects his substantial rights, Puckett
v. United States, 556 U.S. 129, 135 (2009). If he satisfies those three require-
ments, this court may, in our discretion, remedy the error, but only if it “seri-
ously affect[s] the fairness, integrity or public reputation of judicial proceed-
ings.” Id. (internal quotation marks and citation omitted).

      The government has moved unopposed for summary affirmance in lieu
of filing a brief. In the alternative, it moves for an extension of time to file its
brief. Although United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir.
2016) (en banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259), forecloses
relief on Cabrera’s theory that, in light of Johnson, § 16(b) is unconstitutionally
vague on its face, his contention that § 16(b) is unconstitutional as applied to
him is not foreclosed by Gonzalez-Longoria. Accordingly, we decline to issue a
summary affirmance. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969).


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                                  No. 15-41034

      Cabrera’s “as applied” challenge turns on whether he was “able to appre-
hend that he could face enhanced punishment because his prior offense natur-
ally involves physical force” and whether “the provision under which he was
sentenced [was] not . . . so standardless as to invite arbitrary or discriminatory
enforcement.” Gonzalez-Longoria, 831 F.3d at 677. The Texas offense of evad-
ing arrest with a motor vehicle is a crime of violence under § 16(b) and thus is
an “aggravated felony.” See United States v. Sanchez-Ledezma, 630 F.3d 447,
451 (5th Cir. 2011). In Sanchez-Ledezma, we noted that that offense “typically
involves violent force which the arresting officer must in some way overcome”
and “will typically lead to a confrontation with the officer being disobeyed, a
confrontation fraught with risk of violence.” Id. at 450–51 (internal quotation
marks and citation omitted). Thus, the standard of § 16(b) can be straight-
forwardly applied to Cabrera’s state conviction, and he was on sufficient notice
that that offense is considered violent “because it involves a substantial risk
that, in the course of its commission, force will be used against another.”
Gonzalez-Longoria, 831 F.3d at 678.

      Accordingly, there was no error, and certainly no clear or obvious error,
in the determination that Cabrera’s state conviction is an aggravated felony
for purposes of §§ 2L1.2(b)(1)(C) and 1326(b)(2). Further briefing is therefore
not necessary.

      The motion for summary affirmance is DENIED. Because we dispense
with further briefing, the alternative motion for an extension of time to file a
brief is DENIED. The judgment is AFFIRMED.




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