     Case: 18-10032      Document: 00514983173         Page: 1    Date Filed: 06/04/2019




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

                                    No. 18-10032                             FILED
                                  Summary Calendar                        June 4, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE SALGADO-DIAZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-355-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Jose Salgado-Diaz appeals his conviction, under 8 U.S.C. § 1326(a) and
(b)(2), for illegal reentry following deportation. Salgado-Diaz contends that the
district court erred by entering judgment under § 1326(b)(2) based on his 2007
Illinois convictions for aggravated battery of a peace officer. He argues that
the Illinois offense, as defined in 2007, is broader than “generic” aggravated
battery because it does not require the use of a deadly weapon. Because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10032

Salgado-Diaz did not object in the district court, we review for plain error. See
Puckett v. United States, 556 U.S. 129, 135 (2009).
      Judgment is properly entered under § 1326(b)(2) when a defendant’s
prior removal was subsequent to his conviction for an “aggravated felony,”
including for a “crime of violence” for which the term of imprisonment was at
least one year. § 1326(b)(2); 8 U.S.C. § 1101(a)(43)(F). A “crime of violence” is
“an offense that has as an element the use, attempted use, or threatened use
of physical force against the person or property of another.” 18 U.S.C. § 16(a);
see Sessions v. Dimaya, 138 S. Ct. 1204, 1210-16 (2018). We have not, in a
published decision, held that Illinois’s 2007 aggravated battery of a peace
officer statute lacks the requisite use-of-force element to qualify as a “crime of
violence.” A “lack of binding authority is often dispositive in the plain-error
context.” United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015).
      Salgado-Diaz cites our decision in United States v. Reyes, 866 F.3d 316
(5th Cir. 2017), for the proposition that Illinois aggravated battery constitutes
a “crime of violence” only if committed with a deadly weapon, noting that his
convictions were based merely on the status of the victim. But Reyes did not
hold that an Illinois aggravated battery offense can constitute a “crime of
violence” only if it involves the use of a deadly weapon, and it said nothing at
all about aggravated battery based on the status of the victim. See Reyes, 866
F.3d at 319-23. Accordingly, Reyes does not show any error in this case to be
“clear under current law.” United States v. Palmer, 456 F.3d 484, 491 (5th Cir.
2006).
      In United States v. Diaz-Cortes, 451 F. App’x 323 (5th Cir. 2011), we held
in an unpublished decision that Illinois aggravated battery of a peace officer
does not have as an element the requisite use of force, but, as the Government
correctly notes, the precedential basis for Diaz-Cortes’s holding was overruled



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                                 No. 18-10032

by our recent decision in United States v. Reyes-Contreras, 910 F.3d 169, 183-
84, 187 (5th Cir. 2018) (en banc). Thus, at best, “this circuit’s law remains
unsettled.” United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007). As a
result, any error in entering judgment under § 1326(b)(2) was not sufficiently
clear or obvious to be plain error. See Puckett, 556 U.S. at 135.
      The judgment is AFFIRMED.




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