     Case: 16-20631      Document: 00513978061         Page: 1    Date Filed: 05/03/2017




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

                                    No. 16-20631                                FILED
                                  Summary Calendar                           May 3, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROLANDO DANIEL GARCIA-HERNANDEZ, also known as Rolando Daniel-
Garcia, also known as Rolando Daniel Hernandez Garcia, also known as
Rolando Hernandez-Garcia, also known as Rolando Daniel H. Garcia,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-197-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Rolando Daniel Garcia-Hernandez appeals following his guilty plea
conviction and sentence for illegal reentry after deportation. He contends that
the district court reversibly erred by imposing an eight-level enhancement
under the aggravated felony provision of U.S.S.G. § 2L1.2(b)(1)(C) (2015), and
that the district court erred by imposing judgment under 8 U.S.C. § 1326(b)(2),


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20631

because his prior Texas felony conviction of assault causing bodily injury to a
family/house member does not satisfy the definition of an aggravated felony
under 8 U.S.C. § 1101(a)(43)(F).             In defining an aggravated felony,
§ 1101(a)(43)(F) incorporates the definition of a crime of violence (COV) under
18 U.S.C. § 16.
      Garcia-Hernandez argues that his prior Texas conviction is not an
aggravated felony pursuant to § 16(b) because § 16(b) is unconstitutionally
vague on its face in light of Johnson v. United States, 135 S. Ct. 2551 (2015). 1
He concedes that his constitutional challenge to § 16(b) 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), but he wishes to preserve the issue for
possible further review.
      The Government agrees that Garcia-Hernandez’s challenge to § 16(b) is
foreclosed by Gonzalez-Longoria, and it has filed an unopposed motion for
summary affirmance. Summary affirmance is proper where, among other
things, “the position of one of the parties is clearly right as a matter of law so
that there can be no substantial question as to the outcome of the case.”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
      In Gonzalez-Longoria, 831 F.3d at 672-77, we analyzed the COV
definition in § 16(b) in light of Johnson, and we held that § 16(b) is not
unconstitutionally vague on its face. The parties therefore are correct that
Gonzalez-Longoria       forecloses    Garcia-Hernandez’s        facial   constitutional
challenge to § 16(b). See id. Moreover, the Supreme Court recently decided
Beckles v. United States, 137 S. Ct. 886, 890 (2017), wherein the Court declined


      1Garcia-Hernandez also argues that his Texas conviction does not meet the definition
of a COV under § 16(a); however, we need not reach that issue given the result regarding §
16(b).



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                               No. 16-20631

to extend Johnson and held that “the advisory Guidelines are not subject to
vagueness challenges under the Due Process Clause.”
     In view of the foregoing, 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.




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