     Case: 17-20526       Document: 00514857955           Page: 1   Date Filed: 03/01/2019




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

                                       No. 17-20526                             FILED
                                                                         February 26, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                Plaintiff - Appellee

v.

ALAN VICTOR GOMEZ GOMEZ,

                Defendant - Appellant




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


Before CLEMENT, HIGGINSON, and HO, Circuit Judges. *
JAMES C. HO, Circuit Judge:
      Alan Victor Gomez Gomez pled guilty to illegally reentering the United
States after deportation. The district court sentenced him under 8 U.S.C.
§ 1326(b)(2), based on the conclusion that his prior conviction for aggravated
assault constitutes a “crime of violence” under 18 U.S.C. § 16, and thus an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F). On appeal, he challenges
the characterization of his prior conviction as a crime of violence. We affirm.
      We recently revisited the definition of “crime of violence,” in one of the
most consequential en banc rulings our court has issued in recent years. See



      *   Judge Higginson concurs in the judgment only.
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                                   No. 17-20526
United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc). That
en banc decision expressly overruled no fewer than eighteen of our prior circuit
precedents.
      No court approaches the act of overruling one of its prior precedents
lightly—let alone eighteen of them. But our court deemed it “necessary” to do
so, in order to bring our circuit back into alignment with the statutory text as
enacted by Congress and construed by the Supreme Court, not to mention
numerous precedents of our sister circuits. Id. at 173. In doing so, Reyes-
Contreras provided important clarity to the issues that originally gave birth to
this appeal, as it undoubtedly will in countless other pending and future
appeals in our circuit.
      Congress defined “crime of violence” in 18 U.S.C. § 16(a) to include “an
offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” Gomez Gomez argues
that aggravated assault under Tex. Penal Code § 22.02(a)(1) is not a crime of
violence, because the offense can be committed through indirect as well as
direct uses of force.
      This argument might have had some force prior to Reyes-Contreras,
under our precedents that recognized a distinction between direct and indirect
uses of force. But we abrogated that distinction in Reyes-Contreras. 910 F.3d
at 180–81. We now instead recognize, consistent with the Supreme Court’s
decision in United States v. Castleman, 572 U.S. 157, 162–68 (2014), that the
“use of force” under 18 U.S.C. § 16(a) incorporates the common-law definition
of force—and thus includes indirect as well as direct applications of force.
      Recognizing the significance of our en banc ruling in Reyes-Contreras,
Gomez Gomez argues that it should not apply precisely because it is a change
in the law. That is, he argues that retroactively applying Reyes-Contreras to
his sentence would violate the Ex Post Facto Clause of Article I, Section 9 of
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                                  No. 17-20526
the Constitution. But the Ex Post Facto Clause does not apply to the judiciary.
See, e.g., Rogers v. Tennessee, 532 U.S. 451, 460 (2001) (“The Ex Post Facto
Clause, by its own terms, does not apply to courts.”).
      A retroactive application of a judicial decision can in theory violate the
Due Process Clause. For example, in Bouie v. City of Columbia, 378 U.S. 347
(1964), the Supreme Court held that a defendant’s due process rights could be
violated by a retroactive application of an unexpected and indefensible
expansion of substantive criminal liability. Id. at 353–54.
      But Reyes-Contreras did not make previously innocent activities
criminal. It merely reconciled our circuit precedents with the Supreme Court’s
decision in Castleman. As our ruling explained: “The Fifth Circuit stands
alone in restricting the reasoning of Castleman on direct versus indirect force
to misdemeanor crimes of domestic violence.” Reyes-Contreras, 910 F.3d at
180. We simply backed away from our anomalous position and aligned our
circuit with the precedents of other circuits. In short, Reyes-Contreras was
neither unexpected nor indefensible. See also United States v. Martinez, 496
F.3d 387, 390 (5th Cir. 2007) (holding that a retroactive application of a judicial
decision resolving a circuit split to a defendant’s sentencing was not a violation
of due process under Bouie).
      That conclusion dooms this appeal. In Reyes-Contreras, we held that
Castleman “is not limited to cases of domestic violence,” and “that for purposes
of identifying a conviction as a [crime of violence], there is no valid distinction
between direct and indirect force.” 910 F.3d at 182. This holding forecloses
Gomez Gomez’s use of the distinction between direct and indirect force—a
distinction he had hoped would help him establish that aggravated assault
under Texas law is not a crime of violence under 18 U.S.C. § 16. See also
United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006) (holding that
Texas simple bodily assault does not require the use of force and is therefore
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                                 No. 17-20526
not a crime of violence), overruled by Reyes-Contreras, 910 F.3d at 181–82 (“We
therefore necessarily overrule Part I.A of Villegas-Hernandez . . . to the extent
that Villegas-Hernandez concluded that indirect force does not constitute the
use of physical force.”). Accordingly, we affirm.




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