     Case: 18-40338      Document: 00515113393         Page: 1    Date Filed: 09/11/2019




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

                                                                             FILED
                                    No. 18-40338                     September 11, 2019
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARGARITO OLVERA-MARTINEZ, also known as Margarito Olvera
Martinez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:17-CR-783-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Margarito Olvera-Martinez appeals his guilty plea conviction for illegal
reentry, in violation of 8 U.S.C. § 1326, for which the district court imposed a
sentence of 36 months in prison.           He argues that his prior conviction for
Assault-Family Violence, pursuant to Texas Penal Code § 22.01(a)(1) and
(b)(2), does not constitute an aggravated felony for purposes of § 1326(b)(2).



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40338     Document: 00515113393     Page: 2   Date Filed: 09/11/2019


                                  No. 18-40338

      Olvera-Martinez raises this argument for the first time on appeal.
Accordingly, we review for plain error only. See Puckett v. United States, 556
U.S. 129, 135 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 368
(5th Cir. 2009). On plain error review, we consider whether an error is clear
or obvious in light of the state of the law at the time of appeal. See United
States v. Sanchez-Arvizu, 893 F.3d 312, 315 (5th Cir. 2018).
      Olvera-Martinez’s argument is foreclosed by United States v. Gracia-
Cantu, 920 F.3d 252 (5th Cir. 2019), petition for cert. filed (U.S. June 25, 2019)
(No. 18-1593). Gracia-Cantu held that a prior Texas conviction for Assault-
Family Violence under § 22.01(a)(1) and (b)(2) fell within 18 U.S.C. § 16(a),
thereby qualifying as a crime of violence and an aggravated felony. Gracia-
Cantu, 920 F.3d at 254-55.        Furthermore, Gracia-Cantu reiterated that
retroactively applying United States v. Reyes-Contreras, 910 F.3d 169, 187 (5th
Cir. 2018) (en banc)–which abolished any distinction between (1) “direct and
indirect force” and (2) “causing injury and using direct force”–does not violate
due process. Gracia-Cantu, 920 F.3d at 255.
      The judgment of the district court is AFFIRMED.




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