United States v. Antonio Romero-Borego

690 F. App'x 865

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 15, 2017
• Docket: 16-41438 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Antonio Romero-Borego was sentenced to 70 months for illegal reentry into the United States. On appeal, he contends that the district court committed reversible plain error when it added criminal history points under U.S.S.G. § 4A1.1(e) on the basis of his three Texas aggravated-robbery convictions, which he claims are not crimes of violence (“COVs”) under U.S.S.G. § 4B1.2(a) (2015).

The linchpin of Romero-Borego’s theory is that the residual clause of U.S.S.G. § 4B1.2(a)(2) is unconstitutionally vague, because it contains the same language as the provision of the Armed Career Criminal Act that was invalidated for vagueness in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Romero-Borego contends that, once the residual clause is excised from the text of § 4B1.2 (2015) for unconstitutional vagueness, the commentary to that guideline, which enumerates robbery as a COV, can no longer stand. He further maintains that his aggravated-robbery convictions do not qualify as COVs under any remaining provision of § 4B1.2(a).

Romero-Borego concedes that his plain-error challenge to the validity of the residual clause and to the application of the relevant commentary are foreclosed by United States v. Jeffries, 822 F.3d 192, 193-94 (5th Cir. 2016) (per curiam), cert. denied, — U.S. -, 137 S.Ct. 1328, 197 L.Ed.2d 524 (2017). He raised those issues in the hope that the Supreme Court would issue a decision favorable to his position in a pending case. But in Beckles v. United States, — U.S. -, 137 S.Ct. 886, 897, 197 L.Ed.2d 145 (2017), the Court declined to extend Johnson to guidelines determinations and instead held, “Because the advisory Sentencing Guidelines are not subject to a due process vagueness challenge, § 4B1.2(a)’s residual clause is not void for vagueness.”

In the wake of Bedeles, the government moved, unopposed, for summary affir-mance, contending that Bedeles forecloses the issues raised on appeal. Summary af- firmance is proper where, among other instances, “the position of one of the parties is clearly light as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

In view of Beckles, and taking into consideration Romero-Borego’s con-cession that Jeffries effectively forecloses his challenge to the sentence, summary affirmance is appropriate. See id. Accordingly, the motion for summary affirmance is GRANTED, and the judgment is AFFIRMED. The government’s alternative request for an extension of time to file a brief is DENIED as unnecessary.

* 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.