     Case: 16-20631      Document: 00515075579         Page: 1    Date Filed: 08/14/2019




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

                                                                                 FILED
                                    No. 16-20631                           August 14, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

ROLANDO DANIEL GARCIA-HERNANDEZ, also known as Rolando Daniel-
Garcia, also known as Rolando Daniel Hernandez Garcia, also known as
Rolando Hernandez-Garcia, also known as Rolando Daniel H. Garcia,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-197-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Rolando Daniel Garcia-Hernandez was convicted of illegal reentry after
deportation and sentenced to thirty months of imprisonment and three years
of supervised release. On appeal, Garcia-Hernandez contends that the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20631   Document: 00515075579    Page: 2   Date Filed: 08/14/2019



                                 No. 16-20631
court erred by applying an eight-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(C) and entering a judgment of conviction under 8 U.S.C.
§ 1326(b)(2), both based on a finding that his prior Texas conviction for assault
causing bodily injury to a family or house member met the definition of “crime
of violence” (COV) under 18 U.S.C. § 16. Section 16 defines “crime of violence”
as:
       (a) an offense that has as an element the use, attempted use, or
       threatened use of physical force against the person or property of
       another, or

       (b) any other offense that is a felony and that, by its nature,
       involves a substantial risk that physical force against the person
       or property of another may be used in the course of committing the
       offense.
18 U.S.C. § 16. Garcia-Hernandez appealed, arguing that his prior conviction
was not a COV because it did not have force as an element under § 16(a) and
because the COV definition at § 16(b) was unconstitutionally vague. We
affirmed. United States v. Garcia-Hernandez, 689 F. App’x 252 (5th Cir. 2017)
(per curiam).
       The Supreme Court granted Garcia-Hernandez’s petition for a writ of
certiorari, vacated our judgment, and remanded for further consideration in
light of Sessions v. Dimaya, 138 S. Ct. 1204, 1212, 1223 (2018), which held that
§ 16(b) was unconstitutionally vague. However, we have subsequently held
that a Texas conviction for “intentionally, knowingly, or recklessly caus[ing]
bodily injury to another,” like Garcia-Hernandez’s prior conviction here, see
TEX. PENAL CODE §22.01(a)(1), “necessarily requires the use of physical force,”
and therefore constitutes a COV under § 16(a). See United States v. Burris,
920 F.3d 942, 948 (5th Cir. 2019).
       Accordingly, the judgment is AFFIRMED.



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