     Case: 15-40227       Document: 00514466041      Page: 1    Date Filed: 05/09/2018




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

                                                                           FILED
                                      No. 15-40227                      May 9, 2018
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


                Plaintiff – Appellee,

v.

JOSE PRISCILIANO GRACIA-CANTU,

                Defendant – Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:14-CR-815-1


Before KING*, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:**
      We WITHDRAW our prior panel opinion and SUBSTITUTE this
opinion.       Jose Prisciliano Gracia-Cantu appeals the district court’s
determination that a conviction under Texas Penal Code sections 22.01(a)(1)
and (b)(2) for “Assault – Family Violence” qualifies as a crime of violence
under 18 U.S.C. § 16, and is therefore an aggravated felony for purposes of 8



      *   Concurring in the judgment only.
      **  Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set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 Fifth Circuit Rule 47.5.4.
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                                       No. 15-40227
U.S.C. § 1101(a)(43)(F) and U.S.S.G. § 2L1.2(b)(1)(C). Consistent with our
binding precedent, we determine that a conviction under Texas Penal Code
sections 22.01(a)(1) and (b)(2) does not fall within the definition of a crime of
violence under 18 U.S.C. § 16(a). In light of the Supreme Court’s holding that
as incorporated in the Immigration and Nationality Act context 18 U.S.C.
§ 16(b) is unconstitutionally vague, and because the government forfeited the
argument that § 16(b) continues to apply in the Guidelines context, we
determine that the sentence cannot be supported by § 16(b) either. 1
Therefore,     we    VACATE        Gracia-Cantu’s       sentence      and    REMAND         for
resentencing.
                                               I.
       Gracia-Cantu pleaded guilty to a single-count indictment for being an
alien unlawfully present in the United States following deportation in
violation of 8 U.S.C. §§ 1326(a) and (b)(1). Gracia-Cantu had a prior Texas
felony conviction for “Assault – Family Violence” under Texas Penal Code
sections 22.01(a)(1) and (b)(2).          The pre-sentence report recommended an
eight-level increase pursuant to 8 U.S.C. § 1101(a)(43)(F) and U.S.S.G.
§ 2L1.2(b)(1)(C) because Gracia-Cantu had been previously convicted of an
aggravated felony prior to deportation. Gracia-Cantu filed an objection to the



       1  We do not address the government’s untimely argument, raised in two sentences
for the first time in its 28(j) letter after the issuances of Sessions v. Dimaya, 138 S.Ct. 1204
(2017), that Dimaya is not dispositive because Gracia-Cantu’s § 16(b) challenge is
essentially a challenge to the Guidelines, which are not subject to a void for vagueness
challenge under Beckles v. United States, 137 S. Ct. 886 (2017). See United States v.
Scroggins, 599 F.3d 433, 447 (5th Cir. 2010) (noting that “[i]t is not enough to merely
mention or allude to a legal theory” and hold that the party forfeited the argument where
he “merely mention[ed] it in conclusory sentences tacked to the end of paragraphs”). The
government did not argue at any point in its briefing that the Guidelines are not subject to
a void-for-vagueness challenge or file a 28(j) letter in this case after Beckles was issued.
The government forfeited the argument that the Guidelines context precludes Gracia-
Cantu’s argument that § 16(b) is unconstitutionally vague and cannot support his sentence.

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                                 No. 15-40227
pre-sentence report, arguing that because his prior Texas conviction was not
a crime of violence under 18 U.S.C. § 16, the conviction did not qualify as an
aggravated    felony   under    8   U.S.C.     § 1101(a)(43)(F)   and   U.S.S.G.
§ 2L1.2(b)(1)(C). As to § 16(a), Gracia-Cantu objected that the use of force is
not an element of the offense under Fifth Circuit precedent, and as to § 16(b),
he objected that the offense does not always entail a substantial risk that
force will be used. The government argued that the statutes presented a risk
of force, even if they did not require the use of force, and that the statutes do
require the use of force under intervening Supreme Court caselaw.
      The district court overruled the objection, finding that the prior offense
was a crime of violence qualifying as an aggravated felony for purposes of
U.S.S.G. § 2L1.2(b)(1)(C). In doing so, the district court looked at the prior
judgment of conviction, which stated that the bodily injury occurred by
“striking said Maria Garcia on or about the head with an object: to wit, a
can.” The district court then stated: “And by striking and, you know, clearly,
common sense tells you that you strike somebody with—I mean, first of all,
causing bodily injury by striking her with a can is—requires force.” Gracia-
Cantu timely appealed his 41-month sentence.
                                       II.
      We first address whether Gracia-Cantu’s prior conviction qualifies as a
crime of violence under 18 U.S.C. § 16(a).        When, as here, a defendant
properly preserves an objection to the classification of a prior offense as an
aggravated felony, our review is de novo. United States v. Medina-Anicacio,
325 F.3d 638, 643 (5th Cir. 2003); see also United States v. Sanchez-Ledezma,
630 F.3d 447, 449 (5th Cir. 2011) (stating that review is de novo where an
“appeal concerns only the interpretation of the United States Sentencing
Guidelines and statutory provisions incorporated in the Sentencing
Guidelines by reference”).
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                                 No. 15-40227
      Section 16(a) defines a “crime of violence” as: “an offense that 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). During the pendency of
this appeal, multiple Supreme Court and Fifth Circuit decisions interpreting
the term “crime of violence” in different statutory and Guidelines contexts
have shifted the legal landscape. The government argues that the court’s
precedent that a conviction under Texas Penal Code section 22.01(a)(1) is not
a crime of violence for § 16(a) purposes has been abrogated by United States
v. Castleman, 134 S. Ct. 1405 (2014), and Voisine v. United States, 136 S. Ct.
2272 (2016). See United States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th
Cir. 2006) (holding that the “use of force is not an element of assault under
section 22.01(a)(1), and the assault offense does not fit subsection 16(a)’s
definition for crime of violence”); United States v. Vargas-Duran, 356 F.3d
598, 606 (5th Cir. 2004) (en banc) (stating that there is “a difference between
a defendant’s causation of an injury and the defendant’s use of force”).
      The government’s argument, however, is foreclosed by our rule of
orderliness. See United States v. Tanksley, 848 F.3d 347, 350 (5th Cir. 2017)
(stating that under the rule of orderliness “one panel of this Court may not
overrule another” unless a “Supreme Court decision ‘expressly or implicitly’
overrules one of our precedents” (first quoting United States v. Segura, 747
F.3d 323, 328 (5th Cir. 2014); and then quoting United States v. Kirk, 528
F.2d 1057, 1063 (5th Cir. 1976))). In United States v. Rico-Mejia, the court
held that “Castleman does not disturb this court’s precedent regarding the
characterization of crimes of violence . . . .” 859 F.3d 318, 322–23 (5th Cir.
2017). We again confirmed that Castleman did not overrule our precedent in
United States v. Reyes-Contreras, 882 F.3d 113, 123 (5th Cir. 2018) (“A post-
Castleman panel, in United States v. Rico-Mejia . . . , has already held that
Castleman does not abrogate our decisions on the use of force under the
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                                      No. 15-40227
Guidelines, binding us by the rule of orderliness.”). While the government
contends that Rico-Mejia itself does not adhere to the rule of orderliness, the
Reyes-Contreras decision already determined that Rico-Mejia is the court’s
controlling precedent. 2      See id.    Therefore, under our binding precedent,
Gracia-Cantu’s conviction is not a crime of violence under § 16(a). 3
                                            III.
       We next address whether Gracia-Cantu’s conviction qualifies as a crime
of violence under 18 U.S.C. § 16(b). 4 During the pendency of this appeal, the
Court held in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), that § 16(b) as
incorporated in the Immigration and Nationality Act is unconstitutionally
vague. Id. at 1211–12, 1223. The parties agree that Gracia-Cantu did not
object at the time of sentencing that § 16(b) is void for vagueness and that
review is for plain error. Puzzlingly though, the government utterly fails to
brief the plain-error issue and instead relies on the foreclosure argument,
which is not enough, as the Supreme Court has the last word. Under these
circumstances, we are satisfied that appellant has established plain error.
       To obtain relief under plain-error review, an appellant must show: (1)
an error or defect that was not affirmatively waived; (2) the legal error is
clear or obvious; (3) the error affected the appellant’s substantial rights; and



       2The government acknowledged at oral argument that it raised its argument that
Rico-Mejia did not adhere to the rule of orderliness in its Reyes-Contreras briefing.

       3Since oral argument in the instant case, the government has filed a petition for
rehearing en banc in Reyes-Contreras, which remains pending.

       4  Gracia-Cantu raised two arguments as to § 16(b): (1) that § 16(b) is
unconstitutionally vague; and (2) that Gracia-Cantu’s Texas assault conviction does not
present a substantial risk of using physical force. Because the government has forfeited the
argument that post-Dimaya § 16(b) nonetheless continues to apply in the Guidelines
context, we determine that the first argument is dispositive of the appeal and do not reach
the second.

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                                No. 15-40227
(4) if the first three prongs are satisfied, that the court should exercise its
discretion to correct the error because it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.”     United States v.
Carlile, 884 F.3d 554, 556–57 (5th Cir. 2018) (quoting United States v. Prieto,
801 F.3d 547, 549–50 (5th Cir. 2015)).
      Dimaya held that § 16(b) is unconstitutionally vague and therefore
void—at least in certain contexts. The government forfeited its argument
that Gracia-Cantu’s challenge to § 16(b) is essentially a challenge to the
Guidelines, which are not subject to a void-for-vagueness challenge under
Beckles v. United States, 137 S. Ct. 886 (2017).         See United States v.
Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (“A party that asserts an
argument on appeal, but fails to adequately brief it, is deemed to have waived
it.” (quoting Knatt v. Hosp. Serv. Dist. No. 1, 327 F. App’x 472, 483 (5th Cir.
2009))). At the time of sentencing, Supreme Court precedent foreclosed the
objection that § 16(b) is unconstitutionally vague, and after an intervening
change in the law, that argument was again foreclosed by this court during
the pendency of Gracia-Cantu’s appeal. However, “the error became clear in
light of a decision announced while this case was still on direct appeal.”
United States v. Hornyak, 805 F.3d 196, 199 (5th Cir. 2015) (citing Henderson
v. United States, 568 U.S. 266, 269 (2013)).      This error affected Gracia-
Cantu’s substantial rights, as he received a 41-month sentence that is 11
months above the Guidelines range that applies for Gracia-Cantu’s criminal-
history level if a conviction under Texas Penal Code sections 22.01(a)(1) and
(b)(2) is not a crime of violence under 18 U.S.C. § 16. See United States v.
Reyes-Ochoa, 861 F.3d 582, 589 (5th Cir. 2017) (“[A] sentence under an
incorrect Guidelines range ‘can, and most often will, be sufficient to show a
reasonable probability of a different outcome absent the error.’” (quoting
Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016))).
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                                      No. 15-40227
       Determining that Gracia-Cantu satisfies the first three prongs of plain-
error review, we turn to whether prong four is satisfied.                   Gracia-Cantu
argues that we should exercise our discretion on prong four because the
district court did not indicate that it would have imposed an above-
Guidelines sentence if it had considered the correct range. The government
has not argued here that we should not exercise our fourth-prong discretion. 5
       Gracia-Cantu’s sentence was 11 months above the top of his correct
Guideline range—a 36% increase.                  “We conclude ‘that the substantial
disparity between the imposed sentence and the applicable Guidelines range
warrants the exercise of our discretion to correct the error.’” Reyes-Ochoa, 861
F.3d at 589 (quoting United States v. Mudekunye, 646 F.3d 281, 291 (5th Cir.
2011)). Moreover, counseling in favor of exercising our discretion here is that
the higher sentence resulted from the application of a statute declared
unconstitutionally void by the Supreme Court while the claim was on direct
appeal. See United States v. Maldonado, 638 F. App’x 360, 363 (5th Cir.
2016) (exercising fourth-prong discretion because requiring the appellant to
serve additional prison time based on an unconstitutional statute “would cast
significant doubt on the fairness of the criminal justice system” (quoting
Hornyak, 805 F.3d at 199)); Hornyak, 805 F.3d at 199 (stating that if the
error resulting in a higher sentence is of a “constitutional magnitude,” it is a
factor that favors exercising fourth-prong discretion); see also United States v.
Torres, 856 F.3d 1095, 1100 (5th Cir. 2017) (stating that the exercise of
fourth-prong discretion is appropriate when there is a significant disparity in
time to be served and the presence of an additional element that “raises a


       5 The government’s April 25, 2018 28(j) letter contends that the court must consider
whether Gracia-Cantu prevails under the fourth prong but does not contain any argument
as to why Gracia-Cantu does not prevail other than directing the court to approximately
fifteen seconds of audio during oral argument. This is insufficient to contest Gracia-Cantu’s
fourth-prong arguments. See Scroggins, 599 F.3d at 446.
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                                  No. 15-40227
question as to the ‘fairness of judicial proceedings’” (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)). Here, under the totality of circumstances of
this case, including that the government has briefed no argument as to why
we should not exercise our discretion, the increased sentence resulted from
applying an unconstitutionally vague statute, and there was a substantial
disparity between Guidelines ranges, we determine that we should exercise
our discretion to correct the error.
                                       IV.
      For the foregoing reasons, we VACATE Gracia-Cantu’s sentence and
REMAND for resentencing consistent with this opinion.




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