     Case: 15-41653      Document: 00514863034         Page: 1    Date Filed: 03/07/2019




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

                                                                                FILED
                                    No. 15-41653                            March 7, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAMIRO CASTANEDA-MORALES, also known as Marco Vargas-Bustos,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-660-1


     ON REMAND FROM THE UNITED STATES SUPREME COURT
Before JONES, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Ramiro Castaneda-Morales pleaded guilty to
illegal reentry. The district court sentenced him to 18 months in prison and
no term of supervised release. That court entered judgment against him under
8 U.S.C. § 1326(b)(2).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-41653

      Castaneda-Morales appealed his sentence and his judgment. He argued
that the district court plainly erred by finding that his Oregon convictions for
third-degree assault merited criminal history points under U.S.S.G. § 4A1.1(e)
because they constituted crimes of violence pursuant to the residual clause of
U.S.S.G. § 4B1.2(a). Castaneda-Morales also contended that the district court
plainly erred by finding that his Oregon convictions were aggravated felonies
for purposes of U.S.S.G. § 2L1.2(b)(1)(C) and § 1326(b)(2). Relying on Johnson
v. United States, 135 S. Ct. 2551 (2015), he claimed that the residual clause of
§ 4B1.2(a), and the definition of crime of violence in 18 U.S.C. § 16(b) – which
informed whether his prior convictions constituted aggravated felonies under
§ 2L1.2(b)(1)(C) and § 1326(b)(2) – were unconstitutionally vague. During the
pendency of his appeal, he was released from prison.
      After we affirmed the district court, the Supreme Court granted
certiorari, vacated the judgment, and remanded for consideration in light of its
decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which held that the
definition of crime of violence in § 16(b) was void for vagueness. The parties,
at our request, filed supplemental letter briefs addressing whether the instant
appeal is moot and discussing the impact of Dimaya.
      The parties agree that an appeal of sentencing issues in this case is moot
because Castaneda-Morales’s sentence has expired, see Spencer v. Kemna, 523
U.S. 1, 7 (1998); United States v. Heredia-Holguin, 823 F.3d 337, 340 (5th Cir.
2016) (en banc). They further agree, however, that the entry of judgment
under § 1326(b)(2) remains appealable because that designation possibly has
adverse immigration consequences, see United States v. Ovalle-Garcia, 868
F.3d 313, 314 (5th Cir. 2017); United States v. Villanueva-Diaz, 634 F.3d 844,
848-49 (5th Cir. 2011). The parties also agree that, in light of Dimaya, the
definition of crime of violence set forth in § 16(b) cannot be a basis for treating



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                                  No. 15-41653

Castaneda-Morales’s prior Oregon convictions as aggravated felonies under §
1326(b)(2). The parties disagree, however, whether the judgment should be
affirmed because the prior convictions are aggravated felonies under the
definition of crime of violence set forth in § 16(a). We review the issue for plain
error. See United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir.
2009).
      Pursuant to § 16(a), an offense qualifies as a crime of violence if it has as
an element the use, attempted use, or threatened use of physical force against
the person or property of another. § 16(a). Castaneda-Morales argues that his
Oregon convictions for third-degree assault do not meet this definition because
the statute of conviction, Oregon Revised Statute § 163.165(1), states that the
offense can be committed recklessly and requires only the causation of injury
instead of the direct use of force. This court has rejected Castaneda-Morales’s
arguments and has determined (1) that the use of force can include reckless
conduct, (2) that indirect force can constitute the use of force, and (3) that there
is no distinction between causation of injury and use of force. United States v.
Reyes-Contreras, 910 F.3d 169, 180-84 (5th Cir. 2018) (en banc). Third-degree
assault in Oregon otherwise requires a demonstration that the defendant
intentionally, knowingly, or recklessly employed a force that could cause pain
or injury against another person.        See id. at 183, 185; OR. REV. STAT.
§ 161.015(7) & (8); OR. REV. STAT. § 163.165(1).
      A conviction in Oregon for third-degree assault thus qualifies as a crime
of violence under § 16(a), and, accordingly, is an aggravated felony for purposes
of § 1326(b)(2). Castaneda-Morales therefore has not shown that the district
court plainly erred by imposing judgment under § 1326(b)(2). See Mondragon-
Santiago, 564 F.3d at 368.
      The judgment of conviction is AFFIRMED.



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