USA v. Jaime Hernandez-Hernandez

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UNPUBLISHED OPINION FILED. [16-41382 Affirmed ] Judge: EGJ , Judge: JES , Judge: JEG Mandate pull date is 05/23/2017 for Appellant Jaime Adrian Hernandez-Hernandez; granting motion for summary affirmance filed by Appellant Mr. Jaime Adrian Hernandez-Hernandez [8411822-2] [16-41382]

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Case: 16-41382 Document: 00513975635 Page: 1 Date Filed: 05/02/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-41382 Summary Calendar United States Court of Appeals Fifth Circuit FILED May 2, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus JAIME ADRIAN HERNANDEZ-HERNANDEZ, Also Known as Jaime Adrian Amaro Hernandez-Hernandez, Defendant–Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 7:15-CR-1745-1 Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: * Jaime Hernandez-Hernandez pleaded guilty of illegal reentry and was 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-41382 Document: 00513975635 Page: 2 Date Filed: 05/02/2017 No. 16-41382 sentenced to a 41-month term of imprisonment. On appeal, he renews his challenge to application of the eight-level aggravated-felony enhancement of U.S.S.G. § 2L1.2(b)(1)(C). The gravamen of his position is that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015), the definition of a crime of violence (“COV”) in 18 U.S.C, § 16(b) is unconstitutionally vague on its face. Therefore, he contends, his Texas conviction of evading arrest with a motor vehicle does not qualify as a COV under § 16(b) and thus is not an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(F) and § 2L1.2(b)(1)(C). Hernandez-Hernandez concedes that his argument is foreclosed by United States v. Gonzalez-Longoria, 831 F.3d 670, 672–77 (5th Cir. 2016) (en banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259), in which we rejected a constitutional challenge to § 16(b) as facially vague. Moreover, the Supreme Court recently decided Beckles v. United States, 137 S. Ct. 886, 890 (2017), wherein it declined to extend Johnson and held that “the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause.” In view of the foregoing, Hernandez-Hernandez’s unopposed motion for summary disposition is GRANTED, and the judgment is AFFIRMED. 2

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