     Case: 15-10615      Document: 00513663541        Page: 1     Date Filed: 09/02/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals

                                     No. 15-10615
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                         September 2, 2016
UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellee

v.

JUAN CASTILLO-RIVERA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas


Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Juan Castillo-Rivera, convicted of illegal reentry under 8 U.S.C. § 1326,
appeals his sentence. The question presented is whether Texas Penal Code
§ 46.04 prohibiting possession of a firearm by a felon qualifies as an aggravated
felony under 8 U.S.C. § 1101(a)(43). Under our precedent, it does. Therefore,
we affirm.
      In Nieto Hernandez v. Holder, we squarely held that “TPC § 46.04(a) fits
within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of ‘aggravated felony.’” 1


      1 592 F.3d 681, 686 (5th Cir. 2009). Under § 1101(a)(43)(E)(ii), an aggravated felony
includes an offense described in 18 U.S.C. § 922(g)(1), the federal statute prohibiting
possession of a firearm by a felon.
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                                       No. 15-10615
Castillo-Rivera urges that this holding does not foreclose his overbreadth
arguments because they were not considered in Nieto Hernandez. 2 We rejected
an identical position in United States v. Herrold. 3 In Herrold, the question
under review was whether a Texas statute qualified as generic “burglary” for
purposes of the Armed Career Criminal Act. Although we had already
concluded in United States v. Silva 4 that the statute qualified as generic
burglary, the defendant insisted that this holding did not foreclose a novel
argument that the Silva panel “never considered.” We disagreed, explaining
that the failure of the Silva panel to “consider the argument that Herrold now
advance[d] d[id] not make the holding any less binding.” 5 The same reasoning
applies here. We are bound by the holding in Nieto Hernandez, and Castillo-
Rivera’s new arguments provide no basis to depart from precedent. 6 The
judgment and sentence are AFFIRMED.




       2 Castillo-Rivera argues that Texas Penal Code § 46.04 is substantively broader than
18 U.S.C. § 922(g)(1) because Texas’s definition of a felony offense differs from the U.S. Code,
and because Texas’s definition of a firearm differs from the U.S. Code.
       3 813 F.3d 595 (5th Cir. 2016).
       4 957 F.2d 157 (5th Cir. 1992).
       5 Herrold, 813 F.3d at 598–99; see also Sykes v. Tex. Air Corp., 834 F.2d 488, 492 (5th

Cir. 1987) (“The fact that in [the prior decision] no litigant made and no judge considered the
fancy argument advanced in this case does not authorize us to disregard our Court’s strong
rule that we cannot overrule the prior decision.”).
       6 Castillo-Rivera also argues on appeal that Texas Penal Code § 46.04 cannot be

described in 18 U.S.C. § 922(g)(1) because the federal statute contains a unique interstate
commerce element. This argument is now foreclosed by the Supreme Court’s decision in
Torres v. Lynch, 136 S. Ct. 1619, 1634 (2016).
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                                       No. 15-10615
JAMES L. DENNIS, Circuit Judge, concurring:
       Were we not bound by our holding in Nieto Hernandez v. Holder, 592
F.3d 681 (5th Cir. 2009), I would hold that a Texas conviction for being a felon
in possession of a firearm under Texas Penal Code (TPC) § 46.04(a) is not an
aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(ii). In my view, an offense
under TPC § 46.04(a) is not “described in” 18 U.S.C. § 922(g)(1) because the
plain language of the state statute makes clear that it criminalizes some
conduct that the federal statute does not.
       Specifically, it is beyond dispute that, unlike the federal statute, TPC
§ 46.04(a) criminalizes the possession of a firearm by persons who have been
convicted of certain offenses that are not punishable by a term of imprisonment
exceeding one year. 1 Compare 18 U.S.C. § 922(g)(1) (making it unlawful for
any person “who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year” to possess a firearm (emphasis
added)), with TPC § 46.04(f) (defining the term “felony” for purposes of § 46.04
as an offense that: “(1) is designated by a law of this state as a felony; (2)
contains all the elements of an offense designated by a law of this state as a
felony; or (3) is punishable by confinement for one year or more in a
penitentiary” (emphasis added)).             A defendant’s showing that the plain
language of a state statute clearly criminalizes conduct that is outside the



       1I also note that the federal statute contains several exclusions that the state statute
does not. 18 U.S.C. § 921(a)(20) provides, inter alia:
               The term “crime punishable by imprisonment for a term exceeding one
       year” does not include (A) any Federal or State offenses pertaining to antitrust
       violations, unfair trade practices, restraints of trade, or other similar offenses
       relating to the regulation of business practices, or (B) any State offense
       classified by the laws of the State as a misdemeanor and punishable by a term
       of imprisonment of two years or less.
       TPC § 46.04 contains no such limitations.
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                                 No. 15-10615
scope of the relevant federal or generic offense is sufficient to establish that
that the state offense is broader. See United States v. Ortiz-Gomez, 562 F.3d
683, 685-87 (5th Cir. 2009) (holding that a Pennsylvania “terroristic-threats”
offense was not a “crime of violence” based on the language of the statute);
United States v. Cruz-Rodriguez, 625 F.3d 274, 276 (5th Cir. 2010) (holding
similarly with respect to a California offense without relying on any state
decision on point).
      I would also reject the Government’s contention that TPC § 46.04(f) is
divisible.   It is the Government’s burden to prove that a prior conviction
qualifies for a sentencing enhancement. See United States v. Constante, 544
F.3d 584, 587 (5th Cir. 2008). Yet the Government makes only a bare assertion
that § 46.04(f) is divisible because it “sets out one or more elements of the
offense in the alternative,” without making any showing that a jury must
unanimously agree that a particular alternative under this section was proven
beyond reasonable doubt. The Government therefore has not satisfied its
burden to establish that the state statute is divisible. See Mathis v. United
States, 136 S. Ct. 2243, 2249, 2256 (2016) (holding that statutes are divisible
only if they include alternative “elements,” which a jury must find beyond a
reasonable doubt, rather than alternative “means” of satisfying a single
element). Thus, were I writing on a clean slate, I would hold that § 46.04(a) is
not an aggravated felony and therefore that the district court erred in applying
a sixteen-level enhancement in sentencing the appellant.
      Our slate is not clean, however. I agree with the majority that Nieto
Hernandez controls the outcome of this case and mandates that we affirm the




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                                        No. 15-10615
district court’s sentence under our court’s rule of orderliness. 2 See United
States v. Herrold, 813 F.3d 595 (5th Cir. 2016) (holding that a published
opinion’s holding is binding even if the panel failed to consider a relevant
argument); Cent. Pines Land Co. v. United States, 274 F.3d 881, 893 (5th Cir.
2001) (“It is well-established in this circuit that one panel of this Court may
not overrule another.”). But I do not think that this should be the end of the
matter. In my view, the combination of Nieto Hernandez and Herrold leads to
a result that is plainly wrong. While I do not fault the Nieto Hernandez panel
for failing to consider arguments that the parties in that case never made, we
should not allow its decision to answer such an important sentencing question
by default and foreclose the valid challenge raised by the appellant in this case.
I therefore urge our court to reconsider and correct Nieto Hernandez’s
erroneous holding en banc.




       2  In Nieto Hernandez, an alien petitioned for review of the Board of Immigration
Appeals’s (BIA) decision that he was not eligible for cancellation of removal due to a prior
conviction for an aggravated felony. 592 F.3d at 683. In his petition, Nieto Hernandez
asserted that his conviction under TPC § 46.04(a) was not an aggravated felony as “described
in” 18 U.S.C. § 922(g)(1) because, unlike §922(g)(1), the state statute did not contain an
interstate commerce element. Nieto Hernandez, 592 F.3d at 683. A panel of this court
rejected this argument and denied the petition solely on that basis. See id. at 684. (“We hold
that state felon-in-possession offenses . . . need not have an interstate commerce element in
order for the offense to be an offense ‘described in’ 18 U.S.C. § 922(g)(1). Accordingly, we deny
Nieto’s petition for review.”). Based on this analysis, the court concluded that “Nieto’s offense
under TPC § 46.04(a) fits within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of ‘aggravated
felony,’” citing the petitioner’s concession that the only difference between the state and
federal offenses was the interstate commerce element. Nieto Hernandez, 592 F.3d at 686 &
n.6.
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