USA v. Francisco Trevino-Rodriguez

Filing

UNPUBLISHED OPINION FILED. [14-41091 Affirmed] Judge: PEH, Judge: ECP, Judge: CH. Mandate pull date is 02/02/2017 for Appellant Francisco Trevino-Rodriguez; denying motion for summary affirmance filed by Appellee USA [8300475-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8300475-3] [14-41091]

Case: 14-41091

Document: 00513833262

Page: 1

Date Filed: 01/12/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-41091
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
January 12, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO DE JESUS TREVINO-RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-588-1

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Following his guilty plea conviction for illegal reentry after removal,
Francisco De Jesus Trevino-Rodriguez was sentenced above his advisory
guidelines range to 41 months of imprisonment. Trevino-Rodriguez argues
that the district court erred by convicting, sentencing, and entering judgment
against him pursuant to 8 U.S.C. § 1326(b) based upon its determination that
his prior conviction for burglary of a habitation in violation of Texas Penal Code

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-41091

Document: 00513833262

Page: 2

Date Filed: 01/12/2017

No. 14-41091
§ 30.02(a)(3) and (c)(2) was a crime of violence under 18 U.S.C. § 16(b) and thus
was an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Relying primarily
on Johnson v. United States, 135 S. Ct. 2551 (2015), he argues that the
definition of a crime of violence in § 16(b) 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 Trevino-Rodriguez’s arguments are foreclosed by our
decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016)
(en banc), petition for cert. filed (Sept. 30, 2016) (No. 16-6259).

The

Government is correct that Gonzalez-Longoria forecloses Trevino-Rodriguez’s
facial challenge to § 16(b). Insofar as he raises an as-applied challenge, the
claim is not strictly foreclosed by Gonzalez-Longoria because the prior
convictions at issue differ. Summary affirmance is, therefore, inappropriate.
Nevertheless, additional briefing is unnecessary because, just as in GonzalezLongoria, § 16(b) “can be straightforwardly applied to [Trevino’s] prior offense,”
and Trevino “was on sufficient notice that his earlier crime of [burglary of a
habitation] is one society condemns as violent because it involves a substantial
risk that, in the course of its commission, force will be used against another.” 1
Id. at 677-78; see Leocal v. Ashcroft, 543 U.S. 1, 10 (2004). Accordingly, the
district court’s judgment is AFFIRMED, and the motions for summary
affirmance and for an extension of time to file a brief are DENIED.

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 the 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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