USA v. Jose Carpio-Natividad
UNPUBLISHED OPINION FILED. [15-50425 Affirmed] Judge: WED, Judge: LHS, Judge: SAH. Mandate pull date is 01/25/2017 for Appellant Jose Rafael Carpio-Natividad; granting motion for summary affirmance filed by Appellee USA [8306909-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8306909-3] [15-50425]
Date Filed: 01/04/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
January 4, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
JOSE RAFAEL CARPIO-NATIVIDAD,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:15-CR-27-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Following his guilty plea conviction for illegal reentry after removal, Jose
Rafael Carpio-Natividad was sentenced within the recommended guidelines
range to 24 months of imprisonment. Carpio-Natividad argues that the district
court erred by convicting, sentencing, and entering judgment against him
pursuant to 8 U.S.C. § 1326(b)(2) based upon its determination that his 2014
conviction for assault/family violence 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 01/04/2017
§ 22.01(b)(2)(A) was a crime of violence under 18 U.S.C. § 16 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 Section 16(b) is unconstitutionally vague on its face.
He further contends that this court cannot apply Section 16(b) in this case
without violating due process. 1
The Government has filed an unopposed motion for summary
affirmance, urging that Carpio-Natividad’s challenge to Section 16(b) 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 Government is correct that Gonzalez-Longoria forecloses CarpioNatividad’s facial challenge to Section 16(b) as well as, in this case, an asapplied challenge to Section 16(b). 2
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.
Carpio-Natividad also argues that his Texas assault/family violence conviction is not
a crime of violence under Section 16(a). We need not reach this issue given that the conviction
qualifies as a crime of violence under Section 16(b).
The recent grant of certiorari by the United States Supreme Court on the issue of
whether Section 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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