### 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, Mayorga

Salazar contends that the district court erred by applying an eight

- lev el 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 18, 2016 Lyle W. Cayce Clerk Case: 16-40027 Document: 00513765118 Page: 1 Date Filed: 11/18/2016No. 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 ha s moved unopposed for summary affirmance in lieu of filing a brief. Summary affirmance is proper where, among oth er 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. 2 d 1158, 1162 (5th Cir. 19 6 9 ). The summary proced ure 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. 201 0) (noting the denial of summary affirmance whe re an issue was not foreclosed). 1 O ur 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 c onvi ction of the Texas offense of Assault Causing Bodily Injury with a Prio r 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); 5 TH C IR

. R. 47 .5.

2 The recent grant of certi orari 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 p recedent 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)

. Case: 16-40027 Document: 00513765118 Page: 2 Date Filed: 11/18/2016No. 16

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3 applied” to the offense

. Gonzalez

- Longoria , 831 F.3d at 67 7

- 7 8

. Our opi nion in Gonzalez

- Longoria doe s 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 str aightforwardly applied to Mayorga

- Salazar ’s prior conviction, and § 1 6(b) is not unconstitutionally vague as applied to him

. See Gonzalez

- Longoria , 831 F.3d at 677

- 78 ; see also United States v. Sanchez

- Lede zma , 630 F.3d 447, 45 0

- 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 f or purposes of § 2L1.2(b)(1)(C). In light of our conclusion, further briefing is not
necessary. The motions for s ummary affirmance and for an extension of time to file a brief are DENIED. The j udgment of the district court is AFFIRMED. Case: 16-40027 Document: 00513765118 Page: 3 Date Filed: 11/18/2016