     Case: 15-40991      Document: 00513768005         Page: 1    Date Filed: 11/21/2016




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

                                    No. 15-40991                           FILED
                                  Summary Calendar                 November 21, 2016
                                                                      Lyle W. Cayce
                                                                           Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

FRANCISCO ALVARO-VELASCO,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-144-1




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

       Following his guilty-plea conviction of illegal reentry, Francisco Alvaro-



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40991       Document: 00513768005         Page: 2    Date Filed: 11/21/2016


                                      No. 15-40991

Velasco was sentenced to 48 months of imprisonment, including a 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) on account of his conviction of
second-degree kidnapping under North Carolina General Statutes § 14-39.
Alvaro-Velasco contends that the district court “committed reversible plain
error by convicting, sentencing, and entering judgment against Alvaro-Velasco
under 8 U.S.C. § 1326(b)(2) based on its determination that his prior kidnap-
ping conviction qualified as a conviction for a ‘crime of violence’ under 18 U.S.C.
§ 16(b) and thus one for an ‘aggravated felony’ under 8 U.S.C. § 1101(a)(43)(F).”
Relying primarily on Johnson v. United States, 135 S. Ct. 2551 (2015), Alvaro-
Velasco maintains that the definition of a crime of violence in § 16(b), as
incorporated by reference into the definition of an aggravated felony in
§ 1101(a)(43)(F), is unconstitutionally vague on its face. He further contends
that this court cannot apply § 16(b) in this case without violating due process.

       The government has filed an unopposed motion for summary affirmance,
urging that Alvaro-Velasco’s reasoning 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 Gonzalez-
Longoria forecloses Alvaro-Velasco’s facial vagueness challenge to § 16(b) and
his challenge to our application of § 16(b) on due-process grounds. 1 See id. Ac-
cordingly, the motion for summary affirmance is GRANTED, and the judgment
is AFFIRMED. The government’s alternate motion for an extension of time to
file a brief is DENIED as unnecessary.




       1 The grant of certiorari on the issue whether § 16(b) is unconstitutional in light of
Johnson in Lynch v. Dimaya, 2016 WL 3232911 (Sept. 29, 2016) (No. 15-1498), does not affect
the analysis. This court is bound by its own precedent unless and until it 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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