     Case: 15-51139      Document: 00513788685         Page: 1    Date Filed: 12/07/2016




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

                                    No. 15-51139                              FILED
                                  Summary Calendar                     December 7, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SAUL HERNANDEZ-RAMIREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:14-CR-1534-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Saul Hernandez-Ramirez was convicted of illegal
reentry after a bench trial and sentenced to seven months of imprisonment and
a one-year term of supervised release. The sole issue he raises on appeal is
whether the district court erred by denying his motion to dismiss because his
prior removal, which is an element of the illegal reentry offense, violated his
due process rights.       Specifically, he contends that the expedited removal


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51139

procedure, which applies only where the individual has an aggravated felony
conviction, should not have been used in his case because his Texas
misdemeanor assault conviction was not for an aggravated felony.
      We “review de novo the district court’s denial of [Hernandez-Ramirez’s]
motion to dismiss the indictment as well as his underlying constitutional
claims,” and “accept all factual findings made by the district court in
connection with that ruling unless clearly erroneous.”         United States v.
Villanueva-Diaz, 634 F.3d 844, 848 (5th Cir. 2011). To prevail, Hernandez-
Ramirez must “establish that (1) the prior hearing was fundamentally unfair;
(2) the hearing effectively eliminated [his] right . . . to challenge the hearing
by means of judicial review of the order; and (3) the procedural deficiencies
caused [him] actual prejudice.”    Id. at 850 (internal quotation marks and
citation omitted). Hernandez-Ramirez must also exhaust the administrative
remedies set out in 8 U.S.C. § 1326(d)(1), Villanueva-Diaz, 634 F.3d at 849,
which he has done, see Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187 (5th
Cir. 2013).
      Hernandez-Ramirez has not demonstrated that his prior deportation
was fundamentally unfair. He correctly points out that under current case
law, a misdemeanor assault conviction under Texas Penal Code § 22.01(a)(1)
is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), see United States
v. Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir. 2006); however, at the time
of Hernandez-Ramirez’s deportation in July 2003, our precedent indicated that
a violation of § 22.01(a)(1) could be an aggravated felony. In United States v.
Urias-Escobar, 281 F.3d 165, 166-68 (5th Cir. 2002), we affirmed the sentence
of a defendant who was convicted of illegal reentry and received a 16-level
enhancement under U.S.S.G. § 2L1.2 because the district court found his
previous conviction for Texas misdemeanor assault with bodily injury was an



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                                 No. 15-51139

aggravated felony. And in United States v. Shelton, 325 F.3d 553, 555, 557
(5th Cir. 2003), we affirmed the conviction of a defendant for possession of a
firearm following a conviction for a misdemeanor crime of violence, namely his
Texas misdemeanor crime of domestic violence under § 22.01(a)(1).           The
defendant contended that his prior conviction was not a crime of domestic
violence because § 22.01(a)(1) did not have the requisite force element.
Shelton, 325 F.3d at 557. We disagreed, concluding that “because Shelton’s
predicate offense of misdemeanor assault requires bodily injury it includes as
an element the use of physical force.” Id. at 561.
      Given the state of the law when Hernandez-Ramirez was deported in
2003, he has not demonstrated that the use of the expedited removal process
was fundamentally unfair.
      AFFIRMED.




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