USA v. Jaime Abimel-Medellin


UNPUBLISHED OPINION FILED. [16-11575 Affirmed ] Judge: PEH , Judge: EHJ , Judge: JES Mandate pull date is 08/21/2017 for Appellant Jaime Abimel-Medellin; granting motion for summary affirmance filed by Appellee USA [8436165-2]; denying as unnecessary motion to extend time to file appellee's brief filed by Appellee USA [8436165-3] [16-11575]

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Case: 16-11575 Document: 00514095316 Page: 1 Date Filed: 07/31/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-11575 Summary Calendar United States Court of Appeals Fifth Circuit FILED July 31, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JAIME ABIMEL-MEDELLIN, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:16-CR-91-1 Before HIGGINBOTHAM, JONES and SMITH, Circuit Judges. PER CURIAM: * Jaime Abimel-Medellin appeals the sentence imposed following his guilty plea conviction for illegal reentry. He argues that the district court reversibly erred by enhancing his base offense level based upon its determination that his prior Texas conviction for assaulting a family member a second time within a year was a “crime of violence” under 18 U.S.C. § 16(b) and thus an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-11575 Document: 00514095316 Page: 2 Date Filed: 07/31/2017 No. 16-11575 Abimel-Medellin now argues that the “crime of violence” definition in § 16(b) is unconstitutionally vague, both as applied and on its face. He did not raise in the district court his instant argument that § 16(b) is unconstitutional as applied because, in Texas, assaults can be committed recklessly. Accordingly, we review that issue for plain error only. United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009) (internal quotation marks and citation omitted). Abimel-Medellin concedes, correctly, that our decision in United States v. Gonzalez-Longoria, 831 F.3d 670, 677-78 (5th Cir. 2016) (en banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259), forecloses his argument that § 16(b) is unconstitutional on its face. Furthermore, we held in GonzalezLongoria that § 16(b) is constitutional as applied to Texas family-violence assault convictions, like Abimel-Medellin’s, that “consisted of intentionally, knowingly, or recklessly caus[ing] bodily injury to another.” Id. at 678; see also TEX. PENAL CODE ANN. § 25.11(a); TEX. PENAL CODE ANN. § 22.01(a)(1). Thus, Gonzalez-Longoria forecloses both of Abimel-Medellin’s constitutional arguments. The Government has filed an unopposed motion for summary affirmance based on Abimel-Medellin’s concession that Gonzalez-Longoria forecloses his issues on appeal. 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 as unnecessary. 2

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