     Case: 15-41687      Document: 00513786238         Page: 1    Date Filed: 12/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-41687                                  FILED
                                  Summary Calendar                         December 6, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUGARDO VAZQUEZ-HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-507-1


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Lugardo Vazquez-Hernandez pleaded guilty to illegal reentry and was
sentenced to 18 months of imprisonment. His sentence was based in part on
an eight-level enhancement for an aggravated felony pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C). The enhancement was imposed because Vazquez-Hernandez
was convicted in Texas, prior to his removal, of assault of a public servant.
Vazquez-Hernandez argues that the district court erred by characterizing the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41687      Document: 00513786238        Page: 2     Date Filed: 12/06/2016


                                     No. 15-41687

Texas offense of assault of a public servant as an aggravated felony under 8
U.S.C. § 1101(a)(43)(F) for the purposes of convicting and sentencing him
under 8 U.S.C. § 1326(b)(2). Relying on Johnson v. United States, 135 S. Ct.
2551 (2015), Vazquez-Hernandez 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.
      The Government has filed an unopposed motion for summary
affirmance, urging that Vazquez-Hernandez’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. 1        See id.     Accordingly, the motion for summary
affirmance is GRANTED, and the district court’s judgment is AFFIRMED.
The Government’s alternative motion for an extension of time to file a brief is
DENIED.




      1 The 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, ___ S. Ct. ___,
2016 WL 3232911 (Sept. 29, 2016) (No. 15-1498), does not alter our analysis. This court is
bound by its 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).


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