     Case: 18-40458      Document: 00515083837         Page: 1    Date Filed: 08/20/2019




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

                                    No. 18-40458
                                                                            Fifth Circuit

                                                                          FILED
                                  Summary Calendar                  August 20, 2019
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


                                                 Plaintiff-Appellee

v.

JUAN CAMACHO-OLVERA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:17-CR-854-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Juan Camacho-Olvera pleaded guilty to an indictment charging that he
illegally reentered the United States following deportation in violation of
8 U.S.C. § 1326. On appeal, he asserts that the district court erred by
characterizing the offense as a violation of § 1326(b)(2) because his prior
offense of manslaughter under Texas Penal Code § 19.04 does not constitute
an aggravated felony.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40458

      Because Camacho-Olvera did not object on this ground in the district
court, plain-error review applies. See United States v. Mondragon-Santiago,
564 F.3d 357, 368 (5th Cir. 2009). He must show an error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion
to correct the error but only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. See id.
      A person violates § 19.04 “if he recklessly causes the death of an
individual.” TEX. PENAL CODE § 19.04(a). The statute applies to reckless
omissions, such as “failing to provide necessary food and medical care” to a
child. United States v. Dominguez-Hernandez, 98 F. App’x 331, 334 (5th Cir.
2004) (internal quotation marks and citation omitted).
      Any error by the district court in determining that manslaughter under
§ 19.04 is a “crime of violence” under 18 U.S.C. § 16(a)—and thus constitutes
an   aggravated    felony   for   purposes   of   §   1326(b)(2),   see   8   U.S.C.
§ 1101(a)(43)(F)—is subject to reasonable dispute. In United States v. Reyes-
Contreras, 910 F.3d 169, 173-74, 181-84 (5th Cir. 2018) (en banc), we held that
the nearly identical definition of “crime of violence” under former U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) does not require the intentional use of force, the direct use
of force, or bodily contact. We declined to reach whether an omission can
qualify, id. at 181 n.25, and the issue remains unsettled.
      Contrary to Camacho-Olvera’s assertion, we are not prohibited from
retroactively applying Reyes-Contreras’s holding that intentional conduct is
not required, as that holding simply reconciled our caselaw with the Supreme
Court’s decision in Voisine v. United States, 136 S. Ct. 2272, 2279 (2016). See
United States v. Gomez Gomez, 917 F.3d 332, 334 (5th Cir. 2019); Reyes-
Contreras, 910 F.3d at 183. Nor does the requirement of violent force plainly



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                                No. 18-40458

preclude a determination that § 19.04 is a crime of violence. See Johnson v.
United States, 559 U.S. 133, 140 (2010).
      Because any error is subject to reasonable dispute, it is not clear or
obvious, and Camacho-Olvera fails to show plain error. See Henderson v.
United States, 568 U.S. 266, 279 (2013); Puckett, 556 U.S. at 135.         The
judgment of the district court is AFFIRMED.




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