USA v. Omar Rodriguez, No. 17-40041 (5th Cir. 2017)

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Case: 17-40041 Document: 00514072240 Page: 1 Date Filed: 07/13/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-40041 Summary Calendar United States Court of Appeals Fifth Circuit FILED July 13, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. OMAR ORLANDO RODRIGUEZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:15-CR-1314-1 Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Omar Orlando Rodriguez pleaded guilty to illegal reentry following deportation and was sentenced to a 33-month term of imprisonment. On appeal, he renews his challenge to the district court’s 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 in 18 U.S.C. § 16(b) is 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-40041 Document: 00514072240 Page: 2 Date Filed: 07/13/2017 No. 17-40041 unconstitutionally vague on its face. Therefore, he contends, his Texas conviction of evading arrest with a motor vehicle does not qualify as a crime of violence 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). As Rodriguez concedes, 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. Accordingly, Rodriguez’s unopposed motion for summary disposition is GRANTED, and the district court’s judgment is AFFIRMED. Rodriguez’s alternative motion to hold his appeal in abeyance pending decisions by the Supreme Court in Gonzalez-Longoria and Sessions v. Dimaya, 137 S. Ct. 31 (2016) is DENIED. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986). 2

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