USA v. Adrian Ontiveros-Cedillo


UNPUBLISHED OPINION FILED. [16-41682 Affirmed] Judge: CDK, Judge: JWE, Judge: SAH. Mandate pull date is 10/25/2017 for Appellant Adrian Efrain Ontiveros-Cedillo [16-41682]

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Case: 16-41682 Document: 00514182561 Page: 1 Date Filed: 10/04/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-41682 Summary Calendar United States Court of Appeals Fifth Circuit FILED October 4, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ADRIAN EFRAIN ONTIVEROS-CEDILLO, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:16-CR-1288-1 Before KING, ELROD, and HIGGINSON, Circuit Judges. PER CURIAM: * Adrian Efrain Ontiveros-Cedillo appeals his 24-month sentence imposed following his guilty plea conviction for being found unlawfully present in the United States following deportation. He argues that 18 U.S.C. § 16(b) is unconstitutionally vague and, therefore, his prior Texas felony conviction for family-violence assault should not have been categorized as a crime of violence making it an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C) (2015). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-41682 Document: 00514182561 Page: 2 Date Filed: 10/04/2017 No. 16-41682 Ontiveros-Cedillo concedes that this argument is currently foreclosed by United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), petition for cert. filed, No. 16-6259 (U.S. Sept 29, 2016). He preserves this issue for further possible review. We decline Ontiveros-Cedillo’s suggestion that we stay this matter pending a decision in Lynch v. Dimaya, 137 S. Ct. 31 (2016). See United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002). Alternatively, Ontiveros-Cedillo contends that the district court plainly erred by characterizing his prior family-violence assault offense as a crime of violence because the offense, by its nature, does not involve a substantial risk that violent physical force may be used in committing the offense. He contends that, under the categorical approach, the Texas offense of family violence assault is plainly not “by its nature” a § 16(b) crime of violence. Given our conclusion in Gonzalez-Longoria, 831 F.3d at 678, that this same offense is of the type that always entails a substantial risk that physical force will be used, any error cannot be clear or obvious. See Puckett v. United States, 556 U.S. 129, 135 (2009). Although we reached that conclusion in the context of assessing whether § 16(b) was vague as applied, it was necessary to determining the vagueness issue. See United States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014). AFFIRMED. 2

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