     Case: 15-41467      Document: 00514664527         Page: 1    Date Filed: 10/02/2018




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

                                      No. 15-41467                           FILED
                                                                       October 2, 2018
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk

              Plaintiff - Appellee

v.

DANIEL GONZALEZ-BAUTISTA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-267-1


     ON REMAND FROM THE UNITED STATES SUPREME COURT
Before HAYNES, HO, and DUNCAN, Circuit Judges.
PER CURIAM:*
       On December 1, 2016, we issued an opinion denying Daniel Gonzalez-
Bautista’s challenge to 18 U.S.C. § 16(b). United States v. Gonzalez-Bautista,
No. 15-41467, 2016 WL 7028978 (5th Cir. Dec. 1, 2016). Gonzalez-Bautista
argued that § 16(b)’s definition of “crime of violence” was unconstitutionally
vague under Johnson v. United States, 135 S. Ct. 2551 (2015), and that his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41467     Document: 00514664527     Page: 2   Date Filed: 10/02/2018



                                  No. 15-41467
Texas conviction for aggravated assault, see TEX. PENAL CODE § 22.02, was not
an “aggravated felony” for purposes of his conviction for illegal reentry under
8 U.S.C. § 1326(b)(2). See 8 U.S.C. § 1101(a)(43)(F) (defining “aggravated
felony” as including “a crime of violence” as defined in 18 U.S.C. § 16). We
granted the Government’s motion for summary affirmance, as Gonzalez-
Bautista’s argument was foreclosed by our circuit precedent at the time. See
United States v. Gonzalez-Longoria, 831 F.3d 670, 673 (5th Cir. 2016).
Gonzales-Bautista petitioned the U.S. Supreme Court for certiorari. After
deciding in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), that § 16(b)’s definition
of “crime of violence” was unconstitutionally vague, the Supreme Court
vacated and remanded Gonzalez-Bautista’s case for further consideration in
light of Dimaya. We requested supplemental briefing from the parties.
      Gonzalez-Bautista and the Government agree that, after Dimaya, his
conviction under 8 U.S.C. § 1326(b)(2) cannot be affirmed on the basis of
§ 16(b)’s unconstitutionally vague definition of “crime of violence.” The parties
disagree, however, over whether his conviction may properly be affirmed on
the alternative basis that his Texas aggravated assault conviction 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). We exercise our discretion to
remand to the district court to consider this issue in the first instance.
      Accordingly, we REMAND for further proceedings consistent herewith.




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