     Case: 15-40761      Document: 00514731421         Page: 1    Date Filed: 11/20/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-40761                   United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                    November 20, 2018
UNITED STATES OF AMERICA,
                                                                       Lyle W. Cayce
              Plaintiff - Appellee                                          Clerk


v.

CARLOS ALBERTO PEREZ-DE LEON,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-913-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
       Carlos Alberto Perez-de Leon pleaded guilty to illegal reentry and was
sentenced to 66 months of imprisonment. Perez-de Leon appealed his judgment
of conviction and argued for the first time on appeal that the district court
plainly erred by characterizing his prior conviction for Texas aggravated
assault with a deadly weapon as an aggravated felony under 8 U.S.C. §


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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1101(a)(43)(F) for the purpose of convicting and sentencing him under 8 U.S.C.
§ 1326(b)(2). He contended that in doing so, the district court must have relied
on the “residual clause” of 18 U.S.C. § 16, incorporated by reference into §
1101(a)(43)(F), which he argued was unconstitutionally vague. While Perez-de
Leon’s appeal was pending, his argument was foreclosed by this court’s en banc
decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016).
We granted the Government’s motion for summary affirmance and affirmed
Perez-de Leon’s conviction.
      Perez-de Leon petitioned for certiorari before the Supreme Court, which
granted his petition, vacated his judgment, and remanded for consideration in
light of its recent decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which
held § 16(b)—the “residual clause”—to be unconstitutionally vague. This court
then directed the parties to file letter briefs regarding what action we should
take on remand and whether we should decide any pending issues. The parties
timely filed their briefs, essentially agreeing that Perez-de Leon’s conviction
under § 1326(b) can no longer stand if based on § 16(b). The parties dispute,
however, whether Perez-de Leon’s judgment of conviction should be affirmed
on the alternate ground that his prior conviction constitutes an aggravated
felony under § 16(a).
                                        I.
      To be convicted of illegal reentry under § 1326(b)(2) of the Immigration
and Nationality Act (“INA”), a defendant’s removal must have been
“subsequent to a conviction for commission of an aggravated felony.” As
relevant here, the INA defines “aggravated felony” in § 1101(a)(43)(F) as a
“crime of violence,” as defined in 18 U.S.C. § 16, for which the term of
imprisonment is at least one year. Because § 16(b) no longer applies in this
context, we must look to § 16(a), which defines “crime of violence” as “an offense
that has as an element the use, attempted use, or threatened use of physical
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                                       No. 15-40761
force against the person or property of another.” The parties disagree as to
whether Perez-de Leon’s prior conviction under Texas Penal Code § 22.02(a)
for aggravated assault constitutes a crime of violence under § 16(a).
                                              A.
       The Government argues that United States v. Shepherd, 848 F.3d 425,
427–28 (5th Cir. 2017) forecloses Perez-de Leon’s argument that Texas
aggravated assault with a deadly weapon lacks the use or threatened use of
physical force as an element. Perez-de Leon contends that Shepherd’s actual
holding relates to the “residual clause” of United States Sentencing Guidelines
(“Guidelines”) § 4B1.2(a), and any suggestion that Texas aggravated assault
has as an element the use of force is dicta.
       Perez-de Leon has the better of this argument. The relevant two
sentences in Shepherd are as follows:
             Under the provision in the Armed Career Criminal Act
       (“ACCA”) that is worded identically to § 4B1.2, this court found no
       plain error in holding that a defendant’s Texas conviction for
       aggravated assault has as an element the threatened use of
       physical force against the person of another. United States v.
       Guzman, 797 F.3d 346, 348 (5th Cir. 2015). Construing identically
       worded provisions alike, Shepherd’s Texas conviction for
       aggravated assault is a crime of violence under § 4B1.2. See id.; see
       also United States v. Guillen–Alvarez, 489 F.3d 197, 201 (5th Cir.
       2007).

Shepherd, 848 F.3d at 427–28 (emphasis added). 1 The first sentence
specifically mentions Texas aggravated assault and the use of force, but only
in the context of plain error review. The sentence is followed by a citation to



       1 Shepherd addresses the definition of a crime of violence under § 4B1.2. However,
neither party disputes that the analysis under § 4B1.2 also applies to § 16(a). See also United
States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011) (interpreting Guidelines provisions and
statutes with similar language interchangeably). Shepherd itself cites to the ACCA in
interpreting § 4B1.2. Shepherd, 848 F.3d at 427–28. In that vein, cases interpreting the
ACCA are also useful in determining “use of force” under § 16(a).
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Guzman, a case which discussed the “complicated question” of whether a
conviction for Texas aggravated assault under § 22.02 qualified as a “violent
felony” as defined by the ACCA, 18 U.S.C. §924(e)(2)(B). Guzman, 797 F.3d at
347–48. Guzman evaluated § 924(e)(2)(B)’s definition of “violent felony,” which
covers “any crime punishable by imprisonment for a term exceeding one year .
. . that . . . has as an element the use, attempted use, or threatened use of
physical force against the person of another.” Guzman, 77 F.3d at 347 (quoting
§ 924(e)(2)(B)) (italics removed). In doing so, Guzman noted there was
competing caselaw in this circuit as to whether Texas aggravated assault “has
as an element the ‘threatened use of physical force against the person of
another.’” Id. at 348 (quoting § 924(e)(2)(B)). The court compared United States
v. Vargas-Duran, 356 F.3d 598, 606 (5th Cir. 2004) (en banc), 2 which found
that the crime of violence enhancement was improperly applied to the
conviction for intoxication assault and distinguished between the defendant’s
causation of an injury and the defendant’s use of force, with United States v.
Velasco, 465 F.3d 633, 638 (5th Cir. 2006), which upheld the crime of violence
enhancement for aggravated battery on the ground that “the ‘use’ of a deadly
weapon to cause bodily harm . . . involves the element of the use of destructive
physical force against the victim’s person.” Guzman, 797 F.3d at 348 (quoting
Velasco, 465 F.3d at 638). As the language in Shepherd suggests, Guzman did
not actually hold that § 22.02(a) was a crime of violence; it merely stated that
because of the contrasting caselaw in the circuit at the time, the district court
did not clearly err in holding that it was. Guzman, 797 F.3d at 348.



       2 Since Guzman was decided, Vargas-Duran has been abrogated in part as it relates
to the “use of force” needing to be intentional. See United States v. Mendez-Henriquez, 847
F.3d 214, 220–22 (5th Cir. 2017), cert. denied, 137 S. Ct. 2177 (2017); United States v. Howell,
838 F.3d 489, 500–01 (5th Cir. 2016), cert. denied, 137 S. Ct. 1108 (2017). Its analysis as it
relates to whether force is necessary to inflict bodily injury, however, has not been clearly
abrogated or overruled.
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                                       No. 15-40761
       The second sentence in Shepherd talks about aggravated assault falling
within the purview of § 4B1.2, but does not specify which subsection it is
discussing. In support of this proposition, Shepherd cites to Guzman
and Guillen–Alvarez. Id. As discussed above, Guzman simply held that it was
not plain error to find Texas aggravated assault has as an element the use of
force. Guzman, 797 F.3d at 348. While Guillen-Alvarez found that § 22.02 was
an aggravated felony because it fell within the enumerated offense of
aggravated assault under Guidelines § 2L1.2(b)(1)(A)(ii), the court specifically
declined to address whether § 22.02 had as an element the use of force. Guillen-
Alvarez, 489 F.3d at 200 n.2. Accordingly, neither the cases relied upon in
Shepherd nor Shepherd itself affirmatively declares § 22.02(a)(2) has as an
element the requisite use of force to qualify as a crime of violence; at most,
Shepherd concludes it was not plain error to hold § 22.02(a) was a crime of
violence.
       While the Government has cited several unpublished cases affirming
Shepherd’s “holding” that Texas aggravated assault has the use of force as an
element, 3 they are not binding and are less persuasive after taking a more
careful look at Shepherd’s language. See United States v. Johnson, 619 F.3d
469, 473 n.3 (5th Cir. 2010) (“Although unpublished cases from this court
rendered after January 1, 1996, and decisions from other circuit courts are not



       3 United States v. Owen, 700 F. App’x 384, 384 (5th Cir. 2017) (unpublished) (“A Texas
aggravated assault conviction constitutes the enumerated offense of ‘aggravated assault’ for
purposes of U.S.S.G. § 4B1.2(a) and satisfies § 4B1.2(a)(1)’s force-as-an-element clause.”
(citing Shepherd, 848 F.3d at 427-28; Guillen-Alvarez, 489 F.3d at 199–201)); United States
v. Favors, 694 F. App’x 281, 282 (5th Cir. 2017) (unpublished), cert. denied, 138 S. Ct. 668
(2018) (“Furthermore, we have recently confirmed that Texas’s crime of aggravated assault
satisfies § 4B1.2(a)(1)’s force-as-an-element clause.” (citing Shepherd, 848 F.3d at 427–28));
United States v. Cruz, 691 F. App’x 204, 205 (5th Cir. 2017) (unpublished), cert. denied, 138
S. Ct. 411 (2017) (“[W]e have recently confirmed that Texas aggravated assault satisfies §
4B1.2(a)(1)’s force-as-an-element clause.” (citing Shepherd, 848 F.3d at 427–28)).

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                                      No. 15-40761
controlling precedent, they may be considered persuasive authority.”). In
addition, United States v. Ramos, No. 16-41483, 2018 WL 3715591 (5th Cir.
Aug. 3, 2018) (unpublished), one of the unpublished opinions cited by the
Government, appears to acknowledge that Shepherd may not have been the
final say on whether Texas aggravated assault has as an element the use of
force. The Ramos court noted, “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).” Ramos,
2018 WL 3715591, at *2 (emphasis added).
      “It is a well-settled Fifth Circuit rule of orderliness that one panel of our
court may not overturn another panel’s decision, absent an intervening change
in the law, such as by a statutory amendment, or the Supreme Court, or our en
banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.
2008). However, “[w]here an opinion fails to address a question squarely, we
will not treat it as binding precedent.” Thomas v. Texas Dep’t of Criminal
Justice, 297 F.3d 361, 370 n.11 (5th Cir. 2002) (citation omitted). Because
Shepherd did not hold that Texas aggravated assault has as an element the
use of force, Perez-de Leon’s argument is not foreclosed.
                                             B.
      While Perez-de Leon’s argument is not foreclosed, he did not raise this
claim before the district court and our review is therefore limited to whether
the district court plainly erred. 4 See United States v. Suarez, 879 F.3d 626, 630
(5th Cir. 2018) (“Claims not preserved are reviewed for plain error.”).


      4   Both parties assume without argument that plain error review applies.
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                                  No. 15-40761
      Plain error review involves four components:
            First, there must be an error or defect—some sort of
      [d]eviation from a legal rule—that has not been intentionally
      relinquished or abandoned, i.e., affirmatively waived, by the
      appellant. Second, the legal error must be clear or obvious, rather
      than subject to reasonable dispute. Third, the error must have
      affected the appellant’s substantial rights, which in the ordinary
      case means he must demonstrate that it affected the outcome of
      the district court proceedings. Fourth and finally, if the above
      three prongs are satisfied, the court of appeals has
      the discretion to remedy the error—discretion which ought to be
      exercised only if the error seriously affect[s] the fairness, integrity
      or public reputation of judicial proceedings.

Puckett v. United States, 556 U.S. 129, 135 (2009) (internal citations and
quotation marks omitted). Even if Perez-de Leon could show the district court
erred in finding Texas aggravated assault to be an aggravated felony, it would
not help him; given the competing caselaw discussed above, we cannot say the
district court clearly or obviously erred. United States v. Rodriguez-Parra, 581
F.3d 227, 230 (5th Cir. 2009) (“There is no plain error if the legal landscape at
the time showed the issue was disputed, even if . . . the district court turns out
to have been wrong.”); Shepherd, 848 F.3d at 427–28.
                                        II.
      For the foregoing reasons, Perez-de Leon’s judgment of conviction is
AFFIRMED.




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