     Case: 15-20487      Document: 00515075532         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. 15-20487                           August 14, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

ARTURO MONTES BENAVIDES,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-173-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Arturo Montes Benavides appeals his conviction for illegal reentry after
deportation, contending that the district court erred by entering a judgment of
conviction under 8 U.S.C. § 1326(b)(2) based on a finding that his prior Texas
conviction for assault causing bodily injury to a public servant constituted a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20487     Document: 00515075532    Page: 2   Date Filed: 08/14/2019



                                 No. 15-20487
“crime of violence” (COV) under the incorporated definition in 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. Benavides argues that this 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. Benavides, 671 F. App’x 350 (5th Cir. 2016) (per curiam).
      The Supreme Court granted Benavides’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 Benavides’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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