     Case: 14-41437      Document: 00513822881         Page: 1    Date Filed: 01/05/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals

                                    No. 14-41437
                                                                                   Fif h Circuit

                                                                                 FILED
                                  Summary Calendar                         January 5, 2017
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

ELDER ROCAEL TZACIR-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-568-1


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Elder Rocael Tzacir-Garcia pleaded guilty to illegal reentry and was
sentenced to 41 months of imprisonment. On appeal, he argues for the first
time that it was reversible plain error to conclude that he previously was
convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43) that qualifies
for sentence enhancement under 8 U.S.C. § 1326(b)(2). Tzacir-Garcia asserts
that his Texas robbery conviction is not an aggravated felony for purposes of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-41437       Document: 00513822881          Page: 2     Date Filed: 01/05/2017


                                       No. 14-41437

§ 1101(a)(43)(F) because 18 U.S.C. § 16(b), which § 1101(a)(43)(F) incorporates
by reference, is unconstitutionally vague on its face in light of Johnson v.
United States, 135 S. Ct. 2551 (2015). Further, he 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 Tzacir-Garcia’s Texas conviction is a crime of violence
under § 16(b) and that a challenge to that determination is foreclosed by
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
that the en banc decision forecloses a facial vagueness challenge to §16(b), and
the decision forecloses also Tzacir-Garcia’s due process challenge to our
application of § 16(b). 1 See Gonzalez-Longoria, 831 F.3d at 672-78. Also,
Tzacir-Garcia has not briefed any argument challenging whether the standard
provided by § 16(b) is unconstitutionally vague as applied to his 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 alternative motion
for an extension of time to file a brief is DENIED.




       1 The recent grant of certiorari to consider whether § 16(b) is unconstitutionally vague,
see Lynch v. Dimaya, 137 S. Ct. 31 (Sept. 29, 2016) (No. 15-1498), does not change this
conclusion. Gonzalez-Longoria is binding precedent unless overruled by this court en banc
or by the Supreme Court. See United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir.
2002); Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986) (noting that a grant of
certiorari does not in itself override this court’s precedent).


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