USA v. Jose Soto-Ortiz

Filing

UNPUBLISHED OPINION FILED. [16-41043 Affirmed ] Judge: EGJ , Judge: PRO , Judge: CH Mandate issue date is 12/06/2017 for Appellant Jose Soto-Ortiz; granting motion for summary affirmance filed by Appellee USA [8519318-2]; denying as moot motion to extend time to file appellee's brief filed by Appellee USA [8519318-3] [16-41043]

Case: 16-41043

Document: 00514236601

Page: 1

Date Filed: 11/14/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-41043
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
November 14, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE SOTO-ORTIZ, also known as Epitacio Valenciana,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-297-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *

Jose Soto-Ortiz appeals the 57-month within-guidelines sentence
imposed in connection with his guilty plea conviction for illegal reentry after
deportation.

Soto-Ortiz argues that the district court plainly erred in

characterizing his prior convictions for Texas murder and aggravated assault
as crimes of violence within the Guidelines, resulting in an additional criminal
history point under U.S.S.G. § 4A1.1(e). He contends that the residual clause

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41043

Document: 00514236601

Page: 2

Date Filed: 11/14/2017

No. 16-41043
of the former version of U.S.S.G. § 4B1.2(a)(2) (2015), is unconstitutional in
light of Johnson v. United States, 135 S. Ct. 2551 (2015), where the Supreme
Court held that nearly identical language in the Armed Career Criminal Act
was unconstitutionally vague. All of Soto-Ortiz’s arguments are foreclosed by
United States v. Jeffries, 822 F.3d 192, 193-94 (5th Cir.), reh’g denied, 829 F.3d
769 (5th Cir. 2016), cert. denied, 137 S. Ct. 1328 (2017) and Beckles v. United
States, 137 S. Ct. 886 (2017).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.
alternative motion for an extension of time is DENIED as moot.

2

The