     Case: 15-41719   Document: 00514728846    Page: 1   Date Filed: 11/19/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 15-41719             United States Court of Appeals
                                                                  Fifth Circuit

                                                                FILED
                                                         November 19, 2018
UNITED STATES OF AMERICA,
                                                           Lyle W. Cayce
      Plaintiff - Appellee                                      Clerk


v.

JOSE LUIS VALLE-RAMIREZ,

      Defendant - Appellant



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


     ON REMAND FROM THE UNITED STATES SUPREME COURT
Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM
      On remand, the issue before us is whether the Defendant Jose Luis
Valle-Ramirez’s conviction for aggravated assault under Georgia law
constitutes an aggravated felony within the meaning of 8 U.S.C. § 1326(b)(2),
the statute of conviction listed on his judgment. We affirm that the relevant
Georgia statute qualifies as an aggravated felony and AFFIRM the district
court’s judgment reflecting Valle-Ramirez’s conviction under § 1326(b)(2).
                              BACKGROUND
      Valle-Ramirez pled guilty to being an alien found unlawfully present in
the United States after his May 2013 deportation, in violation of 8 U.S.C.
§ 1326(a) and (b). His presentence report (PSR) applied a 16-level sentencing
       Case: 15-41719     Document: 00514728846          Page: 2     Date Filed: 11/19/2018



                                       No. 15-41719

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (2014) because of his
previous Georgia felony conviction for aggravated assault, which the PSR
deemed a crime of violence. The PSR further determined that Valle-Ramirez
faced a statutory maximum imprisonment term of 20 years under 8 U.S.C.
§ 1326(b)(2) because his Georgia conviction was an aggravated felony within
that    statute’s    meaning.        Valle-Ramirez        objected    to    the   sentencing
enhancement, urging that the Georgia statute of conviction is not a crime of
violence. He did not, at that time, object to § 1326(b)(2)’s applicability.
        The district court overruled the objection and adopted the PSR’s
findings, varied downward from the guidelines range, and imposed a 30-month
sentence.      The judgment listed his statute of conviction as 8 U.S.C.
§ 1326(b)(2). 1 Valle-Ramirez timely appealed.
        On appeal, Valle-Ramirez reasserted that his Georgia aggravated
assault conviction is not a crime of violence for purposes of the § 2L1.2
enhancement. Valle-Ramirez then asserted for the first time that he “is not
subject to the provisions of 8 U.S.C. § 1326(b)(2)” because his Georgia
conviction is not an aggravated felony—defined in relevant part as a crime of
violence under 18 U.S.C. § 16.            Specifically, he asserted that his Georgia
conviction could not be a crime of violence under § 16(a) because the underlying
statute did not have “as an element the use, attempted use, or threatened use
of physical force.” He also argued the unconstitutional vagueness of § 16(b). 2




        1Valle-Ramirez’s original judgment contained a clerical error listing § 1324(b)(2)
rather than § 1326(b)(2) as his statute of conviction. The judgment was later amended to
correct this error.

        2 18 U.S.C. § 16(b) alternatively defines a crime of violence as “any other offense that
is a felony and that, by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the offense.”


                                               2
     Case: 15-41719       Document: 00514728846         Page: 3       Date Filed: 11/19/2018



                                       No. 15-41719

       This    court’s    affirmance,      see     United    States     v.    Valle-Ramirez,
677 F. App’x 187, 188 (5th Cir. 2017), was based on two cases, Torres-Jaime
and Gonzalez-Longoria. Id. at 187-88. Torres-Jaime “held that a Georgia
conviction for aggravated assault qualifies as a crime of violence.” 3 Id. at 188
(citing United States v. Torres-Jaime, 821 F.3d 577, 580-85 (5th Cir. 2016)).
Gonzalez-Longoria held that 18 U.S.C. § 16(b) was not unconstitutionally
vague.     Id. (citing United States v. Gonzalez-Longoria, 831 F.3d 670, 672
(5th Cir. 2016)).
       Valle-Ramirez sought certiorari in the Supreme Court, which granted
the petition, vacated this court’s judgment, and remanded in light of Sessions
v. Dimaya. See Valle-Ramirez v. United States, 138 S. Ct. 1978, 1978 (2018).
Dimaya held § 16(b) unconstitutionally vague, abrogating this court’s opinion
in Gonzalez-Longoria. Dimaya, 138 S. Ct. 1204, 1223 (2018).
       On     remand,     Valle-Ramirez       no    longer    contests       his   sentencing
enhancement because he is no longer in prison. He does, however, contend
that the Georgia conviction is not an aggravated felony under § 1326(b)(2) and
asks that the judgment be altered to reflect a conviction under § 1326(b)(1)
instead of § 1326(b)(2). 4




       3More specifically, Torres-Jaime held that Georgia aggravated assault qualified as an
enumerated crime of violence for § 2L1.2 purposes. Torres-Jaime, 821 F.3d at 579. It did not
rule on whether Georgia aggravated assault has as an element the use of force.

       4  Although Valle-Ramirez is no longer in prison, whether his judgment reflects a
conviction under § 1326(b)(1) or (b)(2) could have consequences, and this case is not moot.
“[A] conviction under § 1326(b)(2)—involving a prior conviction of an aggravated felony—is
itself an aggravated felony, rendering [the defendant] permanently inadmissible to the
United States.” United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017) (alteration
in original) (quotation marks omitted). A conviction under b(1), however, does not involve a
prior aggravated felony conviction. Because of this distinction and the consequences of a b(2)
conviction, the court has remanded cases when appropriate to amend judgments so that they
reflect convictions under § 1326(b)(1) rather than (b)(2). Id.
                                              3
    Case: 15-41719     Document: 00514728846     Page: 4   Date Filed: 11/19/2018



                                  No. 15-41719

                          STANDARD OF REVIEW
      For errors preserved in the trial court, ordinarily, “[w]e review the
district court’s characterization of a defendant’s prior conviction as a [crime of
violence] de novo.”    United States v. Garcia-Figueroa, 753 F.3d 179, 184
(5th Cir. 2014). To preserve an objection, “[a] party must raise a claim of error
with the district court in such a manner so that the district court may correct
itself and thus, obviate the need for our review.” United States v. Narez-
Garcia, 819 F.3d 146, 149 (5th Cir. 2016) (quotation marks omitted). Although
Valle-Ramirez technically failed to challenge the applicability of § 1326(b)(2)
in the district court, we need not resort to plain error review. The objection to
his § 2L1.2 sentencing enhancement made the same argument about the
Georgia conviction that applies to § 1326(b)(2)—that his Georgia conviction
does not have as an element the use of force.
      These provisions incorporate nearly identical use of force definitions.
The guideline defines a crime of violence to include “any other offense under
federal, state, or local law that has as an element the use, attempted use, or
threatened use of physical force against the person of another.” U.S.S.G.
§ 2L1.2, cmt. n.1(B)(iii) (2008)).   Section 1326(b)(2) incorporates identical
language. It says that an alien “whose removal was subsequent to a conviction
for commission of an aggravated felony” is subject to an enhanced prison term.
This statute defines “aggravated felony” to include “a crime of violence []as
defined in Section 16 of Title 18.” 8 U.S.C. § 1101(a)(43)(F). 18 U.S.C. § 16(a)
defines a crime of violence 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.” Thus, the use of force provision relevant to determining




                                        4
     Case: 15-41719        Document: 00514728846           Page: 5     Date Filed: 11/19/2018



                                        No. 15-41719

§ 1326(b)’s applicability matches the provision to which Valle-Ramirez objected
in the district court regarding his sentencing enhancement. 5
                                       DISCUSSION
       Because Dimaya held that Section 16(b)’s residual clause cannot suffice
under Section 1326(b)(2), the sole issue on appeal is whether Valle-Ramirez’s
Georgia conviction qualifies as an aggravated felony because it 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).
       Valle-Ramirez’s Georgia aggravated assault conviction easily meets this
requirement.         Under Georgia law at the time of Valle-Ramirez’s offense,
Georgia’s assault statute was written as follows:
       (a) A person commits the offense of simple assault when he or she
       either:

            (1)    Attempts to commit a violent injury to the person of
       another; or

            (2)   Commits an act which places another in reasonable
       apprehension of immediately receiving a violent injury.

GA. CODE ANN. § 16-5-20(a) (2012). Aggravated assault occurs when one
commits a simple assault:
               (1)     With intent to murder, to rape, or to rob;




       5 Both parties seem to imply that Valle Ramirez’s § 1326(b)(2) challenge is subject to
plain error review. See Appellant’s Supp. Br. at 2 (“[T]he district court plainly erred in
concluding that Mr. Valle-Ramirez’s prior Georgia conviction for aggravated assault qualifies
as an ‘aggravated felony.’”); Appellee’s Supp. Br. at 3 (“[N]o clear or obvious error occurred.”);
see also Mondragon v. Santiago, 564 F.3d 357, 369 (5th Cir. 2009) (applying plain error
standard to appellate challenge to conviction and sentence under § 1326(b)(2) that was not
raised below). In any event “no party has the power to control our standard of review. A
reviewing court may reject both parties’ approach to the standard.” United States v.
Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (emphasis in original).


                                                5
     Case: 15-41719       Document: 00514728846         Page: 6     Date Filed: 11/19/2018



                                       No. 15-41719

              (2)    With a deadly weapon or with any object, device, or
              instrument which, when used offensively against a person,
              is likely to or actually does result in serious bodily injury; or

              (3)    [Against] a person or persons without legal
              justification by discharging a firearm from within a motor
              vehicle toward a person or persons.

GA. CODE. ANN. § 16-5-21(a)(1)-(3) (2012). Valle-Ramirez concedes that his
aggravated assault conviction can be narrowed using state court documents to
an offense under § 16-5-21(a)(2) and § 16-5-20(a)(2).                In other words, he
committed an act with a deadly weapon, an auto, placing another in reasonable
apprehension of immediately receiving a violent injury.
       In response to this court’s request for supplemental briefing on remand,
Valle-Ramirez argues only that his Georgia offense cannot be a crime of
violence because the mens rea required to commit Georgia assault has “no
requirement that the defendant intend to injure or threaten injury,” whereas
an act that has as an element the use of force requires such an intent. This is
incorrect.
       In Voisine, the Supreme Court held that the word “use” in the context of
“use of force” “is indifferent as to whether the actor has the mental state of
intention,    knowledge,      or   recklessness      with    respect    to   the    harmful
consequences of his volitional conduct.”                    Voisine v. United States,
136 S. Ct. 2272, 2278-79 (2016). 6 This court has recognized that post-Voisine,
“the mental state of recklessness may qualify as an offense that ‘has as an
element the use, attempted use, or threatened use of physical force against the



       6  Although Voisine interpreted the federal misdemeanor crime of domestic violence
statute, this court has recognized that Voisine’s holding applies outside of the MCDV context.
See Howell, 838 F.3d at 501 (applying Voisine’s holding to “use of force” sentencing
guidelines); United States v. Mendez-Henriquez, 847 F.3d 214, 221-22 (5th Cir. 2017) (same).


                                              6
    Case: 15-41719     Document: 00514728846        Page: 7     Date Filed: 11/19/2018



                                 No. 15-41719

person of another.’” United States v. Howell, 838 F.3d 489, 501 (5th Cir. 2016).
Thus, post-Voisine, the phrase “‘has as an element the use, attempted use, or
threatened use or physical force against the person of another’ [is] indifferent
to mens rea: we concern ourselves only with whether [the] predicate conduct
was volitional” in contrast to purely accidental. Mendez-Henriquez, 847 F.3d
at 221-22.
      Georgia’s required mens rea for assault more than satisfies merely
volitional conduct. At issue here, an assault occurs when one “[c]ommits an
act which places another in reasonable apprehension of immediately receiving
a violent injury.” GA. CODE ANN. § 16-5-20(a)(2) (2012). The Supreme Court
of Georgia has explained:
      [P]ursuant to the express language of (a)(2), an assault under that
      subsection looks to the victim’s state of mind, rather than the
      accused’s, to establish the elements of an assault. There is an
      intent of the accused that must be shown, but it is only the criminal
      intent to commit the acts which caused the victim to be reasonably
      apprehensive of receiving a violent injury, not any underlying
      intent of the accused in assaulting the victim.

Dunagan v. State, 502 S.E.2d 726, 730 (Ga. 1998), overruling on other grounds
recognized in Holmes v. State, 529 S.E.2d 879, 882 (Ga. 2000). Other Georgia
courts have held that “[t]here is no specific intent requirement in the statute,
which would indicate that only an intent to commit the act which in fact places
another in reasonable apprehension of injury is required, not a specific intent
to cause such apprehension.”        Maynor v. State, 570 S.E.2d 428, 431
(Ga. Ct. App. 2002). For example, a defendant must intend to drive a vehicle
rapidly through a parking lot, though he need not intend to scare the person
standing     nearby   to   commit   the       assault.    Cf.     Adams     v.   State,
667 S.E.2d 186, 190 (Ga. Ct. App. 2008). In short, to commit the relevant
assault under Georgia law, the defendant must intend to commit the act that

                                          7
     Case: 15-41719       Document: 00514728846         Page: 8     Date Filed: 11/19/2018



                                       No. 15-41719

causes the victim to feel reasonable apprehension of immediate violent injury,
though the defendant need not intend to cause the apprehension itself. Such
a mens rea requirement is more than enough to satisfy the low volitional
conduct standard for “use of force” purposes. 7
       Aside from mens rea, Georgia law is clear that committing an act with a
deadly weapon that places another in reasonable apprehension of immediately
receiving a violent injury requires the use, attempted use, or threatened use of
physical force. Under Georgia law, an assault must include “a demonstration
of violence, coupled with an apparent present ability to inflict injury so as to
cause the person against whom it is directed reasonably to fear that he will
receive an immediate violent injury unless he retreats to secure his safety.”
Daniels v. State, 681 S.E.2d 642, 644 (Ga. Ct. App. 2009) (quotation marks
omitted). Further, “the mere threat to commit a violent injury on a victim,
without more, does not constitute an assault.” Lewis v. State, 560 S.E.2d 73,
75 (Ga. Ct. App. 2002). Finally, “even considering the Georgia statute most
broadly, it allows only for the ‘act of using an instrument offensively.’” Torres-
Jaime, 821 F.3d at 585; see also United States v. Shepherd, 848 F.3d 425, 427-
28 (5th Cir. 2017) (holding that Texas aggravated assault with a deadly
weapon statute “has as an element the threatened use of physical force against
the person of another.”)
       Consequently, the court AFFIRMS the district court’s judgment
reflecting Valle-Ramirez’s conviction under 8 U.S.C. § 1326(b)(2).




       7To the extent Valle-Ramirez relies on this court’s recent decision in United States v.
Burris, 896 F.3d 320 (5th Cir. 2018), that decision has been withdrawn by the panel. See
United States v. Burris, No. 17-10478, 2018 WL 5960775, at *1 (5th Cir. Nov. 14, 2018).
                                              8
