     Case: 16-41483      Document: 00514584947         Page: 1    Date Filed: 08/03/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 16-41483                             FILED
                                  Summary Calendar                      August 3, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

              Plaintiff – Appellee,

v.

JOSE ARMANDO RAMOS, also known as Jose Marquez-Ramos,

              Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-380-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
       Our prior opinion in this case was vacated by the Supreme Court and
remanded to our court for reconsideration in light of Sessions v. Dimaya, 138
S. Ct. 1204 (2018).     Dimaya held that 18 U.S.C. § 16(b) as incorporated into
the Immigration and Nationality Act is unconstitutionally vague. 138 S. Ct.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41483     Document: 00514584947      Page: 2   Date Filed: 08/03/2018



                                  No. 16-41483
at 1209–10. Section 16(b) houses the residual clause for defining the term
“crime of violence,” and is incorporated by reference into various statutory and
Guidelines provisions. See 18 U.S.C. § 16(b); United States v. Godoy, 890 F.3d
531, 537–38 (5th Cir. 2018). Ramos was convicted of illegal reentry and had a
prior conviction of aggravated assault under Texas Penal Code § 22.02. He
appealed, challenging the classification of his prior conviction as a crime of
violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii) and arguing that the entry
of judgment under 8 U.S.C. § 1326(b)(2) was erroneous because his prior
conviction was not a crime of violence under 8 U.S.C. § 16. Because Ramos
failed to raise these objections in the district court, they are reviewed for plain
error. United States v. Ramos, 690 F. App’x 880, 880 (5th Cir. 2017) (holding
that Ramos’s contentions are subject to plain error review).
      The parties agree that on remand, Ramos’s first argument—that his
Texas conviction for aggravated assault is not a crime of violence under
U.S.S.G. § 2L1.2—remains foreclosed. See Godoy, 890 F.3d at 537–40 (holding
that § 16(b) as incorporated into the Guidelines is not subject to a void for
vagueness challenge); United States v. Guillen-Alvarez, 489 F.3d 197, 199–201
(5th Cir. 2007) (holding that Texas aggravated assault is an enumerated crime
of violence for purposes of U.S.S.G § 2L1.2).
      Therefore, the only issue before us is whether post-Dimaya the district
court plainly erred in entering judgment pursuant to § 1326(b)(2).            If a
conviction qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F),
which defines an “aggravated felony” by reference to an offense qualifying as a
crime of violence under § 16, judgment is properly entered under § 1326(b)(2).
8 U.S.C. § 1101(a)(43)(F); 8 U.S.C. § 1326(b)(2). After Dimaya, a conviction
that would be classified as a crime of violence under § 16(b) cannot support the
entry of judgment under § 1326(b)(2). Godoy, 890 F.3d at 541–42. Thus, we
need to determine whether Ramos’s Texas aggravated assault conviction falls
                                        2
     Case: 16-41483       Document: 00514584947         Page: 3     Date Filed: 08/03/2018



                                       No. 16-41483
within § 16(a), which is known as the elements clause. A conviction qualifies
as a crime of violence under § 16(a) if it has “as an element the use, attempted
use, or threatened use of physical force against the person or property of
another.” 18 U.S.C. § 16(a).
       We have previously held under both de novo and plain error review that
a conviction for Texas aggravated assault with a deadly weapon satisfies the
force-as-an-element clause. 1 United States v. Shepherd, 848 F.3d 425, 427–28
(5th Cir. 2017) (holding that there was no plain error because a Texas
aggravated assault conviction satisfies U.S.S.G. § 4B1.2(a)(1)’s use of force as
an element clause and making that determination in light of our prior holding
regarding the identically worded use of force clause in the Armed Career
Criminal Act (citing United States v. Guzman, 797 F.3d 346, 348 (5th Cir.
2015)); see also United States v. Owen, 700 F. App’x 384, 384 (5th Cir. 2017)
(holding under de novo review that a Texas aggravated assault conviction
satisfies U.S.S.G. § 4B1.2(a)(1)’s force-as-an-element clause); United States v.
Favors, 694 F. App’x 281, 282 (5th Cir. 2017) (holding that there was no plain
error because Texas aggravated assault satisfies U.S.S.G. § 4B1.2(a)(1)’s force-
as-an-element clause); United States v. Cruz, 691 F. App’x 204, 205 (5th Cir.
2017) (same).
       The use of force clause in § 16(a) is almost identically worded to the use
of force provisions in the ACCA and U.S.S.G § 4B1.2—provisions that we have
previously held that a Texas aggravated assault conviction falls within.
Compare 18 U.S.C. § 16(a), with 18 U.S.C. § 924(e)(2)(B)(i), and U.S.S.G.
§ 4B1.2(a)(1) (differing only in that an offense qualifies under § 16(a) when the



       1 The pre-sentence report reflects that Ramos was convicted in 2015 of aggravated
assault with a deadly weapon, which is Texas Penal Code § 22.02(a)(2), the same statute of
conviction that we have held has the use of force as element for purposes of U.S.S.G. § 4B1.2.
See Shepard, 848 F.3d at 427–28.
                                              3
    Case: 16-41483     Document: 00514584947     Page: 4   Date Filed: 08/03/2018



                                  No. 16-41483
force is used against “property” in addition to the “person of another”);
Shepherd, 848 F.3d at 427–28 (“Construing identically worded provisions
alike, Shepherd’s Texas conviction for aggravated assault is a crime of violence
under § 4B1.2.”). But see United States v. Charles, 301 F.3d 309, 311–12 (5th
Cir. 2002) (en banc) (holding that the crime of violence analyses differ under
§ 16 and U.S.S.G. § 4B1.2 based on the differences in the residual clauses while
noting that “§ 16(a) and § 4B1.2(a)(1) are virtually identical”). Specifically, in
Guzman, we held that the district court did not clearly or obviously err in
imposing a sentence under the ACCA’s use of force clause for a prior Texas
aggravated assault conviction. 797 F.3d at 348 (discussing that there is no
obvious error where there is competing caselaw holding that the underlying
assault offense does not have the use of force as an element and holding that a
conviction involving the aggravating factor of use of a deadly weapon does have
the use of force as an element (comparing United States v. Vargas-Duran, 356
F.3d 598, 606 (5th Cir. 2004) (en banc) with United States v. Velasco, 465 F.3d
633, 641 (5th Cir. 2006))). The same competing caselaw cited in Guzman, along
with our published holding in Shepherd and the uniformity of other cases
determining that a Texas aggravated assault conviction has the use of force as
an element under virtually identical provisions (or at least that there was no
clear error in the classification), prevents us from saying that there is clear or
obvious error here in entering judgment under § 1326(b)(2). See Shepherd, 848
F.3d at 427–28; Guzman, 797 F.3d at 348.
      The judgment of the district court is affirmed.




                                        4
