     Case: 15-41370      Document: 00513772205         Page: 1    Date Filed: 11/23/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-41370                                  FILED
                                  Summary Calendar                        November 23, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RUDITH VALMORE GUERRERO-ARANIVA, also known as Rudith Valmore
Araniva-Guerrero,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-536-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Following the entry of his guilty plea conviction of illegal reentry, Rudith
Valmore Guerrero-Araniva was sentenced to 32 months of imprisonment,
based in part on an eight-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C) for his prior conviction of the Texas offense of injury to a child
under TEX. PENAL CODE § 22.04. Guerrero-Araniva argues for the first time



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41370      Document: 00513772205            Page: 2   Date Filed: 11/23/2016


                                     No. 15-41370

on appeal that the district court plainly erred by characterizing his 1991 Texas
conviction for injury to a child as an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F) for purposes of applying the § 2L1.2(b)(1)(C) sentencing
enhancement and for convicting and sentencing him under 8 U.S.C.
§ 1326(b)(2). Relying primarily on Johnson v. United States, 135 S. Ct. 2551
(2015), Guerrero-Araniva argues 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. 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 Guerrero-Araniva’s arguments are foreclosed by our
recent decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir.
2016) (en banc), pet. for cert. filed (Sept. 29, 2016) (No. 16-6259).                 The
Government is correct that Gonzalez-Longoria forecloses Guerrero-Araniva’s
facial vagueness challenge to § 16(b), as well as his challenge to our application
of § 16(b) on due process grounds. 1            See id.     Accordingly, the motion for
summary affirmance is GRANTED, and the district court’s judgment is
AFFIRMED. The Government’s alternate 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. ___,
No. 15-1498, 2016 WL 3232911 (Sept. 29, 2016), 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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