USA v. Fransicso Gutierrez-Lopez


UNPUBLISHED OPINION FILED. [16-11469 Affirmed ] Judge: EGJ , Judge: PRO , Judge: CH Mandate pull date is 08/31/2017 for Appellant Francisco Gutierrez-Lopez; granting motion for summary affirmance filed by Appellee USA [8484970-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8484970-3] [16-11469]

Download PDF
Case: 16-11469 Document: 00514110781 Page: 1 Date Filed: 08/10/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-11469 Summary Calendar United States Court of Appeals Fifth Circuit FILED August 10, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FRANCISCO GUTIERREZ-LOPEZ, also known as Jesus Aguilar, also known as Jorge Alberto Gutierrez-Rodriguez, also known as Jesus Fuentes, also known as Jorge Lopez-Perez, also known as Juan Jose Espinoza, also known as Noel Torres, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:16-CR-11-1 Before JOLLY, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Francisco Gutierrez-Lopez challenges the 35-month sentence he received following his guilty plea conviction for illegal reentry. The Government moves for summary affirmance or, alternatively, for an extension of time to file an appellate brief. Summary affirmance is proper where, among other instances, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-11469 Document: 00514110781 Page: 2 Date Filed: 08/10/2017 No. 16-11469 “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 Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Gutierrez first raises an argument that is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224, 228, 235 (1998), which held that convictions used to enhance a sentence under 8 U.S.C. § 1326(b)(2) need not be set forth in the indictment. He also raises an argument that is foreclosed by United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259). In Gonzalez-Longoria, we held that 18 U.S.C. § 16(b), which defines a crime of violence when incorporated by reference into U.S.S.G. § 2L1.2(b)(1)(C) (2014), is not unconstitutionally vague on its face in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Gonzalez-Longoria, 831 F.3d at 672. Accordingly, the motion for summary affirmance is GRANTED, and the district court’s judgment is AFFIRMED. Groendyke Transport, Inc., 406 F.2d at 1162. The Government’s alternative motion for an extension of time to file a brief is DENIED. 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?