     Case: 16-40149       Document: 00514910055         Page: 1    Date Filed: 04/10/2019




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


                                    No. 16-40149
                                                                                   FILED
                                                                               April 10, 2019
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

v.

DANIEL RIVERA-HERNANDEZ,

               Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-785-1


ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
       This case was remanded from the Supreme Court of the United States
for further consideration in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
We placed this case in abeyance while the decision in United States v. Reyes-



       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
    Case: 16-40149    Document: 00514910055     Page: 2   Date Filed: 04/10/2019



                                 No. 16-40149
Contreras, 910 F.3d 169 (5th Cir. 2018), was pending. After Reyes-Contreras
was issued, we requested supplemental briefs from the parties addressing the
decision’s impact on Rivera-Hernandez’s contention that his second-degree
conviction under Utah Code § 76-5-103(1)(a) (1995)—an offense requiring that
a person “intentionally cause[] serious bodily injury to another” as an
element—is not a “crime of violence” under 18 U.S.C. § 16(a), and, thus, not an
“aggravated felony” under 8 U.S.C. § 1101(a)(43)(F).
      Throughout his appeal, Rivera-Hernandez has relied on United States v.
Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004), overruled by Reyes-Contreras,
910 F.3d at 183, and maintained that causation of injury is not the same as the
use of force. Rivera-Hernandez concedes that Reyes-Contreras precludes such
an argument. See 910 F.3d at 183 (eliminating the distinction between causing
injury and using force).
      Nevertheless, Rivera-Hernandez continues to argue that the district
court’s judgment should be vacated because, in his view, Reyes-Contreras
violates due process as it constitutes “an unforeseeable judicial enlargement of
a criminal statute, applied retroactively, operat[ing] precisely like an ex pose
facto law.” Bouie v. City of Columbia, 378 U.S. 347, 353 (1964). This due
process argument is foreclosed by United States v. Gomez, 917 F.3d 332, 334
(5th Cir. 2019), which rejected the same due process argument on the grounds
that “Reyes-Contreras did not make previously innocent activities criminal” but
“merely reconciled our circuit precedents with the Supreme Court’s decision in
[United States v. Castleman, 572 U.S. 157 (2014)].”
      We AFFIRM the district court’s judgment.




                                       2
