     Case: 15-41653      Document: 00513842882         Page: 1    Date Filed: 01/20/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 15-41653                                FILED
                                  Summary Calendar                        January 20, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                Clerk


                                                 Plaintiff-Appellee

v.

RAMIRO CASTANEDA-MORALES, also known as Marco Vargas-Bustos,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-660-1


Before JONES, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Ramiro Castaneda-Morales appeals the 18-month
within-guidelines sentence imposed following his guilty plea conviction of
illegal reentry. See 8 U.S.C. § 1326(a)(1), (b)(2). The two issues raised on
appeal were not raised in the district court, so we review for plain error. See
United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006).                                To
demonstrate plain error, a defendant must show (1) an error or defect, i.e.,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41653

“some sort of deviation from a legal rule”; (2) that is clear or obvious; and that
(3) affects his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009) (internal quotation marks, modification, and citation omitted). If
the defendant makes such a showing, we have the discretion to correct the
error, but we will do so only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id. “In considering whether an error
is clear or obvious we look to the state of the law at the time of appeal, and we
must decide whether controlling circuit or Supreme Court precedent has
reached the issue in question, or whether the legal question would be subject
to reasonable dispute.” United States v. Fields, 777 F.3d 799, 802 (5th Cir.
2015) (internal quotation marks and footnoted citations omitted); see also
Henderson v. United States, 133 S. Ct. 1121, 1130 (2013) (holding that the
“requirement that an error be ‘plain’ means that lower court decisions that are
questionable but not plainly wrong . . . fall outside” the scope of plain error).
      First, Castaneda-Morales claims that the district court plainly erred in
assigning criminal history points under U.S.S.G. § 4A1.1(e) to the sentences
for three of his prior Oregon third-degree assault convictions, which
necessarily required a finding that those convictions were for crimes of
violence, as defined in U.S.S.G. § 4B1.2(a) and comment. (n.5) (Nov. 1, 2014).
He contends that the only basis for characterizing his Oregon offenses as
crimes of violence was § 4B1.2’s residual clause, which he insists is
unconstitutionally vague in light of Johnson v. United States, 135 S. Ct. 2551
(2015). We have not addressed the constitutionality of § 4B1.2’s residual
clause, so Castaneda-Morales cannot show error, if any, that is clear or obvious.
See United States v. Howell, 838 F.3d 489, 492 (5th Cir. 2016) (declining to
address the issue); Henderson, 133 S. Ct. at 1130; Fields, 777 F.3d at 802.
Neither has he shown that the district court erred, clearly or otherwise, to the



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                                  No. 15-41653

extent it determined that the Oregon offenses were categorically crimes of
violence, either as enumerated aggravated assault offenses or under the
elements clause. See Henderson, 133 S. Ct. at 1130; Fields, 777 F.3d at 802.
      Second, Castaneda-Morales asserts that the district court plainly erred
by characterizing his prior Oregon convictions for third-degree assault as
aggravated felonies under 8 U.S.C. § 1101(a)(43)(F) for purposes of applying a
sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (Nov. 1, 2014) and for
convicting and sentencing him under § 1326(b)(2).           Relying primarily on
Johnson v. United States, 135 S. Ct. 2551 (2015), he contends that the
definition of a crime of violence in 8 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.        Castaneda-Morales’s reasoning is
foreclosed by our 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 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, 137
S. Ct. 31 (2016), does not alter this analysis.      We are bound by our 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).
      AFFIRMED.




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