USA v. Jesus Diaz Cardozo

Filing

UNPUBLISHED OPINION FILED.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]

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

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