     Case: 15-41722      Document: 00515009613         Page: 1    Date Filed: 06/25/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                    No. 15-41722                             FILED
                                 Conference Calendar                     June 25, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN CASTRO-CASTRO, also known as Jorge Castro-Valdes, also known as
Jorge Castro-Valdez, also known as Juan Jose Rivera-Castro,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-661-1


      ON REMAND FROM THE UNITED STATES SUPREME COURT

Before DENNIS, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Juan Castro-Castro pleaded guilty to illegal reentry under 8 U.S.C.
§ 1326(a). He was sentenced to prison under § 1326(b)(2) based on prior Utah
convictions for aggravated assault and aggravated sexual assault that were
found to be “aggravated felonies” because they met the definition of “crime of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41722   Document: 00515009613       Page: 2   Date Filed: 06/25/2019


                                   No. 15-41722

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. Castro-Castro appealed, arguing that his Utah convictions
were not COVs because they did not have force as an element under § 16(a)
and because the COV definition at § 16(b) was unconstitutionally vague.
       Though we initially affirmed the judgment, that decision was vacated
and remanded by the Supreme Court in light of Sessions v. Dimaya, 138 S. Ct
1204, 1215-16 (2018), which held that § 16(b) was unconstitutionally vague.
We then requested and received supplemental briefing on whether these
convictions had force as an element under § 16(a) in light of United States v.
Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc), in which we
substantially overhauled our COV jurisprudence and overruled numerous
decisions wholly or in part. Reyes-Contreras, 910 F.3d 169, 182-87 & nn.26-27
(5th Cir. 2018) (en banc).
       Because Castro-Castro did not argue below that his predicate offenses
were not COVs, we review only for plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009). To prevail on plain error review, Castro must identify
(1) a forfeited error (2) that is “clear or obvious, rather than subject to
reasonable dispute,” and (3) that affects his substantial rights. Id. If he does
so, this court has the discretion to correct the error if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).


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                                 No. 15-41722

      In assessing whether a crime has force as an element to constitute a COV
under § 16(a), we use the categorical approach. See United States v. Buck, 847
F.3d 267, 274 (5th Cir. 2017). Under this approach, we consider the necessary
elements of the predicate offense and determine whether the least culpable
method of committing the offense requires the use of force. United States v.
Brewer, 848 F.3d 711, 714 (5th Cir. 2017); see Descamps v. United States, 570
U.S. 254, 257 (2013).
      To be convicted of aggravated assault under Utah law, Castro-Castro
first had to be guilty of the underlying crime of assault under UTAH. CODE ANN.
§ 76-5-102. See UTAH. CODE ANN. § 76-5-103(1) (2001). Section 76-5-102(1)
defined assault as:
      (a) An attempt, with unlawful force or violence, to do bodily injury
      to another;
      (b) A threat, accompanied by a show of immediate force or violence,
      to do bodily injury to another; or
      (c) An act, committed with unlawful force or violence, that causes
      bodily injury to another or creates a substantial risk of injury to
      another.
UTAH CODE ANN. § 76-5-102(1) (2001).
      Castro-Castro relies on an unpublished decision in United States v. Leal-
Rax, in which we held that Utah assault did not require the use of force against
another because § 76-5-102(1)(c) criminalized an act that only “creates a
substantial risk of injury to another.” 594 F. App’x 844, 846, 850 (5th Cir.
2014).   Subsequently, however, Reyes-Contreras abolished the distinction
“between creating a risk of injury and using or attempting to use physical
force.” 910 F.3d at 182-84. In light of Reyes-Contreras, Castro-Castro fails to
show any error that is “clear or obvious, rather than subject to reasonable
dispute.” Puckett, 556 U.S. at 135.




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                                 No. 15-41722

      Castro-Castro argues that a retroactive application of Reyes-Contreras
would deprive him of due process. A due process violation may arise from
retroactive application of a judicial decision if the decision causes “an
unexpected and indefensible expansion of substantive criminal liability.”
United States v. Gomez Gomez, 917 F.3d 332, 334 (5th Cir. 2019) (citing Bouie
v. City of Columbia, 378 U.S. 347, 353-54 (1964)). We have already rejected
similar challenges by observing that “Reyes-Contreras did not make previously
innocent activities criminal,” and “was neither unexpected nor indefensible.”
Gomez Gomez, 917 F.3d at 334; see United States v. Gracia-Cantu, 920 F.3d
252, 255 (5th Cir. 2019) (5th Cir. 2019).
      The judgment is AFFIRMED.




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