Case: 16-40976      Document: 00513900738         Page: 1    Date Filed: 03/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                            United States Court of Appeals

                                    No. 16-40976
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                             March 7, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

JOSE EMILIO VANEGAS-MARTINEZ,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1542-1




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Jose Vanegas-Martinez appeals his guilty-plea conviction of, and



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40976     Document: 00513900738     Page: 2   Date Filed: 03/07/2017


                                  No. 16-40976

sentence for, illegal reentry into the United States. He claims the district court
committed reversible plain error by applying 8 U.S.C. § 1326(b)(2), because his
California conviction of sexual battery by restraint is not an aggravated felony
under 8 U.S.C. § 1101(a)(43)(F). In defining an aggravated felony, Section
1101(a)(43)(F) incorporates the definition of a “crime of violence” under
18 U.S.C. § 16.

      Vanegas-Martinez reasons that his California conviction is not an aggra-
vated felony because Section 16(b) is unconstitutionally vague on its face per
Johnson v. United States, 

(2015). He concedes that his consti-
tutional challenge is foreclosed by United States v. Gonzalez-Longoria,

(5th Cir. 2016) (en banc), petition for cert. filed (Sept. 29, 2016)
(No. 16-6259), and he requests that we summarily dispose of the appeal so he
can seek further review. The government has filed an unopposed motion for
summary affirmance based on Vanegas-Martinez’s concession.

      The parties are correct that Gonzalez-Longoria forecloses Vanegas-
Martinez’s facial constitutional challenge to Section 16(b).      See Gonzalez-

–77. Though Vanegas-Martinez also argues that his
California conviction does not meet the definition of a crime of violence under
Section 16(a), we need not reach that issue, given the result regarding
Section 16(b).

      The motion for summary affirmance is GRANTED, and the judgment is
AFFIRMED. The government’s alternative motion for an extension of time to
file a brief is DENIED.




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