IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20637

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE SANCHEZ OLIVAREZ, also known as Jose G. Sanchez, also known as 

Jose Guadalup Olivarez Sanchez, also known as Jose Guadalupe Olivare 

Sanchez, also known as Jose Guadalupe Sanchez-Olivarez,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:15-CR-355-1

Before WIENER, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM:*

Jose Sanchez Olivarez was convicted of illegal reentry after deportation. 

On appeal, Sanchez Olivarez contends that the district court erred by entering 

a judgment reflecting that he was convicted under 8 U.S.C. § 1326(b)(2) and by 

applying an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C). He 

argues that his prior Texas conviction for the offense of evading arrest with a 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 28, 2016

Lyle W. Cayce

Clerk

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No. 15-20637

2

motor vehicle is not a crime of violence because the definition of crime of 

violence in 18 U.S.C. § 16(b), as incorporated by reference into the definition of 

an aggravated felony in 8 U.S.C. § 1101(a)(43)(F), is unconstitutionally vague 

on its face and as applied to him in light of Johnson v. United States, 135 S. Ct. 

2551 (2015). 

The Government has moved unopposed for summary affirmance in lieu 

of filing a brief. Summary affirmance is proper where, among other instances, 

“the position of 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.” United 

States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006) 

(internal quotation marks and citation omitted). The summary procedure is 

generally reserved for cases in which the parties concede that the issues are 

foreclosed by circuit precedent. United States v. Lopez, 461 F. App’x 372, 374 

n.6 (5th Cir. 2012); see also United States v. Houston, 625 F.3d 871, 873 n.2 

(5th Cir. 2010) (noting the denial of summary affirmance where an issue was 

not foreclosed).1

Our recent decision in United States v. Gonzalez-Longoria, ___ F.3d ___, 

No. 15-40041, 2016 WL 4169127, at *2-*6 (5th Cir. Aug. 5, 2016) (en banc), 

petition for cert. filed (Sept. 29, 2016) (No. 16-6259), forecloses relief on Sanchez 

Olivarez’s argument that in light of Johnson, § 16(b) is unconstitutionally 

vague on its face.2 However, Sanchez Olivarez also raises an as-applied 

 

1 See Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (unpublished opinions 

issued after January 1, 1996 are not controlling precedent but may be considered persuasive

authority); 5TH CIR. R. 47.5.

2 The recent grant of certiorari by the United States Supreme Court on the issue 

whether § 16(b) is unconstitutional in light of Johnson in Lynch v. Dimaya, ___ S. Ct. ___, 

No. 15-1498, 2016 WL 3232911 (Sept. 29, 2016), does not alter the analysis. This court is 

bound by its own precedent unless and until that precedent is altered by a decision of the 

Supreme Court. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).

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challenge. In Gonzalez-Longoria, we addressed an as-applied challenge to the 

appellant’s prior conviction of the Texas offense of Assault Causing Bodily 

Injury with a Prior Conviction of Family Violence and concluded that the 

standard provided by § 16(b) could be “straightforwardly applied” to the 

offense. 2016 WL 4169127, at *5. Our opinion in Gonzalez-Longoria does not 

foreclose relief on Sanchez Olivarez’s as-applied challenge regarding his 

offense of evading arrest with a motor vehicle. Accordingly, summary 

affirmance is not appropriate in this case. See Holy Land Found. for Relief & 

Dev., 445 F.3d at 781.

Nevertheless, the standard of § 16(b) can be straightforwardly applied to 

Sanchez Olivarez’s prior conviction, and § 16(b) is not unconstitutionally vague 

as applied to him. See Gonzalez-Longoria, 2016 WL 4169127, at *5; see also

United States v. Sanchez-Ledezma, 630 F.3d 447, 450-51 (5th Cir. 2011). Thus, 

there was no error in the district court’s determination that Sanchez Olivarez’s 

prior conviction for evading arrest with a motor vehicle is an aggravated felony 

for purposes of § 2L1.2(b)(1)(C) and § 1326(b)(2). In light of our conclusion, 

further briefing is not necessary.

The motions for summary affirmance and for an extension of time to file 

a brief are DENIED. The judgment of the district court is AFFIRMED.

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