     Case: 15-40108       Document: 00514605755         Page: 1    Date Filed: 08/17/2018




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


                                    No. 15-40108                               FILED
                                  Summary Calendar                       August 17, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE LARA-GARCIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:14-CR-9-1
                              ______________________

     ON REMAND FROM THE UNITED STATES SUPREME COURT

Before HIGGINBOTHAM and HAYNES, Circuit Judges.                     *


PER CURIAM:
       Jose Lara-Garcia appealed his judgment of conviction contending that
he should not have been convicted under 8 U.S.C. § 1326(b)(2) based upon his
conviction under Texas Penal Code § 22.02(a)(2). On December 5, 2016, we
granted the Government’s unopposed motion for summary affirmance in light


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. Judge Edward Prado, a member of the original panel in this case, retired from
the court on April 2, 2018, and therefore did not participate in the opinion on remand. The
opinion on remand is issued by a quorum. See 28 U.S.C. § 46(d).
    Case: 15-40108    Document: 00514605755     Page: 2   Date Filed: 08/17/2018


                                 No. 15-40108

of our decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir.
2016) (en banc), vacated, 2018 U.S. LEXIS 3693 (U.S. Jun. 18, 2018) (No. 16-
6259). United States v. Lara-Garcia, 671 F. App’x 248 (5th Cir. 2016). In our
original decision, we followed our then-extant precedent and rejected the
argument that the Texas aggravated assault conviction was not a crime of
violence under 8 U.S.C. § 1101(a)(43)(F) which, in turn, adopted the definition
in 18 U.S.C. § 16(b). Id. at 249. We thus did not reach the arguments regarding
the definition in 18 U.S.C. § 16(a). Id.
      Lara-Garcia petitioned the Supreme Court for certiorari. Following its
decision in Sessions v. Dimaya, 584 U.S. ___, 138 S. Ct. 1204 (2018), the Court
remanded this case to our court “for further consideration” in light of Dimaya.
Alvaro-Velasco v. United States, 138 S. Ct. 1977 (U.S. 2018). We requested
supplemental briefing from the parties.
      The parties agree, and we conclude, that the holding in Dimaya renders
incorrect our decision to grant summary affirmance.          Because the case
originally was not fully briefed, we conclude that our prior grant of summary
affirmance should be vacated and the case should be reinstated on our docket
with a normal briefing schedule.
      Accordingly, we VACATE the order granting summary affirmance and
REINSTATE the appeal on our docket.




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