     Case: 15-40227   Document: 00514899181     Page: 1   Date Filed: 04/02/2019




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


                                 No. 15-40227
                                                                       FILED
                                                                    April 2, 2019
                                                                  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


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 §§ 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 U.S.C. § 1101(a)(43)(F) and
U.S.S.G. § 2L1.2(b)(1)(C). Consistent with our recent en banc decision in
United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc), we
hold that a conviction under Texas Penal Code §§ 22.01(a)(1) and (b)(2) falls
within the definition of a crime of violence under 18 U.S.C. § 16(a).                 We
therefore AFFIRM Gracia-Cantu’s sentence.
    Case: 15-40227     Document: 00514899181        Page: 2   Date Filed: 04/02/2019



                                  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). We recently explained en
banc that this definition does not include a “directness-of-force requirement.”
Reyes-Contreras, 910 F.3d at 183. Even indirect applications of force will do.
Instead, all that this definition requires is that the statute of prior conviction
criminalize only conduct that: (1) is committed intentionally, knowingly, or
recklessly; and (2) “employs a force capable of causing physical pain or injury”;
(3) against the person of another. Id. at 183, 185; see also United States v. De
La Rosa, No. 17-10487, 2019 WL 177958, at *3 (5th Cir. Jan. 11, 2019)
(unpublished).
      Texas “Assault – Family Violence” fits the bill. First, the statute requires
that the offense be committed “intentionally, knowingly, or recklessly.” Tex.
Penal Code § 22.01(a)(1). Second, the statute requires that the defendant
“cause[] bodily injury,” id., which is defined as “physical pain, illness, or any
impairment of physical condition,” id. § 1.07(a)(8). Third, the statute requires
that the injury be caused to “another,” id. § 22.01(a)(2)—specifically, against a
family member, as defined by certain provisions of the Texas Family Code, id.
§ 22.01(b)(2).   This statute therefore meets the definition of a “crime of
violence” under § 16(a). See also United States v. Gomez, 917 F.3d 332, 334
(5th Cir. 2019) (holding that aggravated assault—which shares the same
predicate offense, simple assault, as the statute in the instant case—is a “crime
of violence” under § 16(a)); De La Rosa, 2019 WL 177958, at *3 (holding that
assault against a peace officer, which also shares simple assault as a predicate
offense, is a “crime of violence” under § 16(a)).
      Post-Reyes-Contreras, Gracia-Cantu has only two remaining arguments.
We reject both. First, he asserts that the degree of force required by the Texas
statute—reaching to “any impairment of physical condition,” Tex. Penal Code
                                         2
     Case: 15-40227         Document: 00514899181         Page: 3    Date Filed: 04/02/2019



                                        No. 15-40227
§ 1.07(a)(8), even minor injuries—is too minimal to constitute a crime of
violence. See Curtis Johnson v. United States, 559 U.S. 133, 140 (2010) (“[I]n
the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’
means violent force—that is, force capable of causing physical pain or injury to
another person.”) (emphasis in original). But Gracia-Cantu must show more
than a “theoretical possibility” that the statute could be enforced and applied
this way; he must show a “realistic probability . . . that the State would apply
its statute to conduct that falls outside the [use-of-force clause].”                 Reyes-
Contreras, 910 F.3d at 184 & n.35. In the absence of “supporting state case
law, interpreting a state statute’s text alone is simply not enough to establish
the necessary ‘realistic probability.’” United States v. Castillo-Rivera, 853 F.3d
218, 223 (5th Cir. 2017) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183,
193 (2007)).
       Gracia-Cantu fails to provide that case law. The state-court cases he
relies on—two finding bodily injury when defendants knowingly transmitted
HIV 1 and one finding bodily injury when a defendant knowingly injected
bleach through an IV into a victim’s bloodstream 2—involve force “capable of
causing physical pain or injury” to the degree contemplated by Curtis Johnson.
Reyes-Contreras, 910 F.3d at 185. These instruments—HIV and intravenous
bleach—are no different from the “deadly instruments” in Mr. Reyes-
Contreras’s state-court case law: a gun, poison-laced orange juice, and a plastic
bag. Id. Just as in Reyes-Contreras, the state-court case law that Gracia-
Cantu relies on involves the “knowing[ ] employ[ment of] deadly instruments




       1Billingsley v. State, No. 11-13-00052-CR, 2015 WL 1004364, at *1–2 (Tex. App.–
Eastland Feb. 27, 2015, pet. ref’d) (unpublished); Padieu v. State, 05-09- 00796-CR, 2010 WL
5395656, at *1 (Tex. App.—Dallas Dec. 30, 2010, pet. ref’d) (unpublished).

       2   Saenz v. State, 479 S.W.3d 939, 949–50 (Tex. App.–San Antonio 2015, pet. ref’d)).
                                               3
     Case: 15-40227       Document: 00514899181          Page: 4     Date Filed: 04/02/2019



                                       No. 15-40227
. . . with the understanding that those instruments were substantially likely to
cause physical pain, injury, or . . . death.” 3 Id.
       Gracia-Cantu’s second remaining argument post-Reyes-Contreras is that
applying Reyes-Contreras “retroactively” to his sentence would violate the
Constitution’s protection against “unforeseeable judicial enlargement[s] of . . .
criminal statute[s].” Bouie v. City of Columbia, 378 U.S. 347, 353 (1964).
Gracia-Cantu, however, is not the first to raise this defense against the
application of Reyes-Contreras, and our court has already rejected it. Gomez,
919 F.3d at 33 (“Reyes-Contreras did not make previously innocent activities
criminal. It merely reconciled our circuit precedents with the Supreme Court’s
decision in Castleman.”).
                                            ***
       Reyes-Contreras applies to Gracia-Cantu’s sentence and renders his
prior conviction for Texas “Assault – Family Violence” a “crime of violence”
under 18 U.S.C. § 16(a). Accordingly, we AFFIRM the district court’s sentence.




       3 Gracia-Cantu also suggests that the Texas statute criminalizes assault through the
use of force that is non-physical altogether. For this claim, he points to an indictment of a
defendant who sent a tweet with an animation of strobe lights designed to trigger the
recipient’s epileptic seizures, which they did. See Indictment, State v. Rivello, Case No. F-
1700215-M (Crim. Dist. Ct. No. 5, Dallas Co., Tex. Mar. 20, 2017). Even if an indictment
alone can show a realistic probability that a state criminal statute will be interpreted a
certain way—an issue we need not address today—this argument would fall short. In United
States v. Castleman, the Supreme Court explained that “the knowing or intentional causation
of bodily injury necessarily involves the use of physical force.” 572 U.S. 157, 169 (2014); see
also Reyes-Contreras, 910 F.3d at 182 (“We hold that, as relevant here, Castleman is not
limited to cases of domestic violence . . .”). Seizures are a form of bodily injury. Knowingly
or intentionally causing them, therefore, necessarily involves the use of physical force.
                                              4
