USA v. Jesus Diaz Cardozo


UNPUBLISHED OPINION FILED. [16-10587 Affirmed] Judge: JLW, Judge: JLD, Judge: LHS. Mandate pull date is 08/30/2017 for Appellant Jesus Diaz Cardozo; granting motion for summary affirmance filed by Appellee USA [8488740-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8488740-3] [16-10587]

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Case: 16-10587 Document: 00514108664 Page: 1 Date Filed: 08/09/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-10587 Summary Calendar United States Court of Appeals Fifth Circuit FILED August 9, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JESUS DIAZ CARDOZO, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:15-CR-340-1 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Jesus Diaz Cardozo appeals the 27-month sentence imposed in connection with his conviction for illegal reentry following deportation. He argues that the district court plainly erred in applying the eight-level enhancement under former U.S.S.G. § 2L1.2(b)(1)(C) (2015). He contends that his prior conviction under Texas Penal Code (TPC) § 46.04 does not qualify as an aggravated felony because the Texas definitions of felony and firearm are 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-10587 Document: 00514108664 Page: 2 Date Filed: 08/09/2017 No. 16-10587 broader than the definitions of those terms in 18 U.S.C. § 922(g)(1). He concedes that this court rejected these arguments in the recent decision of United States v. Castillo-Rivera, 853 F.3d 218, 226 (5th Cir. 2017) (en banc), petition for cert. filed (June 28, 2017) (No. 17-5054), and he raises the issue merely to preserve it for further review. The Government has filed an unopposed motion for summary affirmance. Summary affirmance is proper where, among other instances, “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The summary procedure is generally reserved for cases in which the parties concede that the issues are foreclosed by circuit precedent. See United States v. Lopez, 461 F. App’x 372, 374 n.6 (5th Cir. 2012). The motion for summary affirmance is GRANTED, and the district court’s judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED. 2

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