     Case: 16-11402      Document: 00514992130         Page: 1    Date Filed: 06/11/2019




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

                                      No. 16-11402                         FILED
                                                                       June 11, 2019
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

              Plaintiff – Appellee

v.

HOWARD LEON COMBS,

              Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC 4:16-CR-54-1


Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.
PER CURIAM:*
       This appeal requires us to determine de novo whether Texas aggravated
assault, TEX. PENAL CODE § 22.02(a), is a “violent felony” under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). Because we answer
yes, we affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11402

                                             I.
       Howard Combs challenges the district court’s imposition of a sentencing
enhancement under the ACCA.               That law mandates a 15-year minimum
sentence on defendants who violate the felon-in-possession statute, 18 U.S.C.
§ 922(g), and who have three prior convictions for “a violent felony or a serious
drug offense, or both.” 1 18 U.S.C. § 924(e)(1). The ACCA defines “violent
felony” to include “any crime punishable by imprisonment for a term exceeding
one year” that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” Id. § 924(e)(2)(B). The Supreme
Court has stated that “physical force” in this provision means “violent force—
that is, force capable of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010).
                                             A.
       Combs argues that his prior Texas aggravated assault conviction is not
a violent felony because (1) “bodily injury” and “serious bodily injury” can be
caused using indirect methods that do not necessarily involve the use of violent
physical force; (2) the commission of aggravated assault requires only a mens
rea of recklessness, without the purposeful intent to use force; (3) Texas Penal
Code § 22.02(a) is not a divisible statute; and (4) causing bodily injury by using
or exhibiting a deadly weapon does not necessarily entail the threatened use
of physical force under Texas law. Combs also challenges the constitutionality
of 18 U.S.C. § 922(g)(1) under the Commerce Clause.




       1 It is undisputed that Combs pleaded guilty to possession of a firearm by a felon and
has two prior convictions for serious drug offenses. We therefore only address whether
Combs’ conviction for aggravated assault, under Texas law, qualifies as a conviction for
violent felony under the ACCA.

                                             2
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                                        No. 16-11402

                                               B.
       We have, in prior decisions, addressed and rejected each of Combs’
arguments on appeal. Most recently, in United States v. Albin Torres, we
determined that the Texas assault statute is divisible—that is, each subsection
of this assault statute contains “independent groups of elements for
committing multiple crimes.” No. 16-20191, --- F.3d ---, 2019 WL 1986968, at
*5 (5th Cir. May 6, 2019). We then applied the modified categorical approach
and concluded that commission of Texas aggravated assault that is premised
on Section 22.01(a)(2)—threatening another with imminent bodily injury by
using or exhibiting a deadly weapon—is a crime of violence under 18 U.S.C.
§ 16(a). 2 Id. at *5. Torres is on point and puts this appeal to rest. Here, Combs
was convicted of aggravated assault with a deadly weapon for causing bodily
injury to the victim. If threatening another with imminent bodily injury by
using a deadly weapon is a violent felony (Torres), then, under the same
aggravated assault statute, so too is causing such injury. Though Combs
argues that Torres did not involve the ACCA statute, we recognize that, in this
case, there is no material difference between the use-of-force provisions in
Section 16(a) and Section 924(e)(2)(B)(i). See United States v. Nunez-Medrano,
751 F. App’x 494, 500–01 (5th Cir. 2018). 3
       Furthermore, in United States v. Gracia-Cantu, we rejected the
defendant’s arguments—using the same examples Combs now highlights on
appeal—that knowingly transmitting HIV or using convulsion-inducing strobe


       2    “The use of force clause in § 16(a) is almost identically worded to the use of force
provisions in the ACCA.” United States v. Ramos, 744 F. App’x 215, 217 (5th Cir. 2018). The
definition for crime of violence in both § 16(a) and § 924(e)(2)(B)(i) includes offenses that have
“as an element the use, attempted use, or threatened use of physical force against the person
. . . of another.”
          3 While our unpublished opinions are not controlling precedent, they may be

persuasive authority. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citation
omitted).
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                                       No. 16-11402

lights lacked the use of physical force. 920 F.3d 252, 253–54 (5th Cir. 2019)
(per curiam).       Both Torres and Gracia-Cantu applied our recent en banc
decision in United States v. Reyes-Contreras, which found no valid distinction
between direct and indirect force under the ACCA and recognized that the use-
of-force requirement may include knowing or reckless conduct. 910 F.3d 169,
182–83 (5th Cir. 2018) (en banc).              Important here, Reyes-Contreras also
overruled several cases that Combs relies on. Though Combs contends that
retroactive application of our Reyes-Contreras decision violates his due process
rights, we have rejected this argument. United States v. Burris, 920 F.3d 942,
952–53 (5th Cir. 2019); United States v. Gomez Gomez, 917 F.3d 332, 334 (5th
Cir. 2019).
      Finally, regarding Combs’ constitutional challenge to 18 U.S.C.
§ 922(g)(1) under the Commerce Clause, we have rejected that argument as
well. 4 United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013). Considered
altogether, we hold that the issues Combs raises on appeal are all foreclosed.
We therefore conclude that Texas aggravated assault is a violent felony under
the ACCA.
                                              II.
      Based on the above reasons, we affirm Combs’ sentence.
      AFFIRMED.




      4   Combs concedes that this constitutionality issue is foreclosed under our precedent.
                                               4
