IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40027

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GENARO MAYORGA-SALAZAR,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:15-CR-102-1

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

Genaro Mayorga-Salazar was convicted of being an alien unlawfully 

found in the United States after a previous deportation. On appeal, MayorgaSalazar contends that the district court erred 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 motor vehicle is not a crime 

of violence because the definition of crime of violence in 18 U.S.C. § 16(b), as 

 

* 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

November 18, 2016

Lyle W. Cayce

Clerk

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No. 16-40027

2

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 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.” Groendyke 

Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 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, 831 F.3d 670, 

674-77 (5th Cir. 2016) (en banc), cert. filed, No. 16-6259 (Sept. 29, 2016),

forecloses relief on Mayorga-Salazar’s argument that in light of Johnson, 

§ 16(b) is unconstitutionally vague on its face.2 However, Mayorga-Salazar

also raises an as-applied 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 

 

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. ___, 

2016 WL 3232911 (Sept. 29, 2016) (No. 15-1498), 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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applied” to the offense. Gonzalez-Longoria, 831 F.3d at 677-78. Our opinion 

in Gonzalez-Longoria does not foreclose relief on Mayorga-Salazar’s as-applied 

challenge regarding his offense of evading arrest with a motor vehicle. 

Accordingly, summary affirmance is not appropriate in this case. See

Groendyke, 406 F.2d at 1162.

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

Mayorga-Salazar’s prior conviction, and § 16(b) is not unconstitutionally vague 

as applied to him. See Gonzalez-Longoria, 831 F.3d at 677-78; 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 Mayorga-Salazar’s prior 

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

purposes of § 2L1.2(b)(1)(C). 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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