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UNPUBLISHED OPINION FILED.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]
Date Filed: 10/04/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
October 4, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
ADRIAN EFRAIN ONTIVEROS-CEDILLO,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 10/04/2017
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).
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