USA v. Antonio Romero-Borego

Filing

UNPUBLISHED OPINION FILED. [16-41438 Affirmed ] Judge: EGJ , Judge: JES , Judge: JEG Mandate pull date is 07/06/2017 for Appellant Antonio Israel Romero-Borego; granting motion for summary affirmance filed by Appellee USA [8449087-2]; denying as unnecessary motion to extend time to file appellee's brief filed by Appellee USA [8449087-3] [16-41438]

Case: 16-41438

Document: 00514035021

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Date Filed: 06/15/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-41438
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
June 15, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
ANTONIO ISRAEL ROMERO-BOREGO,
Also Known as Antonio Israel Borrego-Romero,
Defendant–Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:16-CR-556-1

Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Antonio Romero-Borego was sentenced to 70 months for illegal reentry
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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No. 16-41438
into the United States. On appeal, he contends that the district court committed reversible plain error when it added criminal history points under
U.S.S.G. § 4A1.1(e) on the basis of his three Texas aggravated-robbery convictions, which he claims are not crimes of violence (“COVs”) under U.S.S.G.
§ 4B1.2(a) (2015).
The linchpin of Romero-Borego’s theory is that the residual clause of
U.S.S.G. § 4B1.2(a)(2) is unconstitutionally vague, because it contains the
same language as the provision of the Armed Career Criminal Act that was
invalidated for vagueness in Johnson v. United States, 135 S. Ct. 2551 (2015).
Romero-Borego contends that, once the residual clause is excised from the text
of § 4B1.2 (2015) for unconstitutional vagueness, the commentary to that
guideline, which enumerates robbery as a COV, can no longer stand. He further maintains that his aggravated-robbery convictions do not qualify as COVs
under any remaining provision of § 4B1.2(a).
Romero-Borego concedes that his plain-error challenge to the validity of
the residual clause and to the application of the relevant commentary are
foreclosed by United States v. Jeffries, 822 F.3d 192, 193–94 (5th Cir. 2016)
(per curiam), cert. denied, 137 S. Ct. 1328 (2017). He raised those issues in the
hope that the Supreme Court would issue a decision favorable to his position
in a pending case. But in Beckles v. United States, 137 S. Ct. 886, 897 (2017),
the Court declined to extend Johnson to guidelines determinations and instead
held, “Because the advisory Sentencing Guidelines are not subject to a due
process vagueness challenge, § 4B1.2(a)’s residual clause is not void for
vagueness.”
In the wake of Beckles, the government moved, unopposed, for summary
affirmance, contending that Beckles forecloses the issues raised on appeal.
Summary affirmance is proper where, among other instances, “the position of
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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).
In view of Beckles, and taking into consideration Romero-Borego’s concession that Jeffries effectively forecloses his challenge to the sentence, summary affirmance is appropriate. See id. Accordingly, the motion for summary
affirmance is GRANTED, and the judgment is AFFIRMED. The government’s
alternative request for an extension of time to file a brief is DENIED as
unnecessary.

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