     Case: 15-41017      Document: 00514779681         Page: 1    Date Filed: 01/02/2019




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

                                                                                 FILED
                                    No. 15-41017                           January 2, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESUS MORALES-SANCHEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-912-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Jesus Morales-Sanchez pleaded guilty to illegal reentry after removal in
violation of 8 U.S.C. § 1326(a) and (b)(2) and was sentenced to 41 months of
imprisonment. Morales-Sanchez appealed and asserted that the district court
plainly erred by convicting, sentencing, and entering judgment against him
under § 1326(b)(2) based on its determination that his prior conviction for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41017    Document: 00514779681     Page: 2   Date Filed: 01/02/2019


                               No. 15-41017
                             Summary Calendar
Texas aggravated assault qualified as a conviction for a crime of violence under
18 U.S.C. § 16(b).     We granted the Government’s motion for summary
affirmance and affirmed Morales-Sanchez’s conviction. The Supreme Court
vacated our judgment and remanded for consideration in the light of Sessions
v. Dimaya, 138 S. Ct. 1204 (2018).
      On remand, the parties agree that Dimaya precludes using § 16(b)’s
crime of violence definition as the basis for designating Morales-Sanchez’s
Texas aggravated assault conviction as an aggravated felony that would justify
his § 1326(b)(2) conviction. The parties dispute whether a Texas aggravated
assault conviction is an aggravated felony as a crime of violence defined by
§ 16(a) in accordance with United States v. Shepherd, 848 F.3d 425, 427-28 (5th
Cir. 2017). The law on this issue is not settled. Therefore, even if Morales-
Sanchez is correct in arguing that Texas aggravated assault is not an
aggravated felony, he cannot show that the district court clearly or obviously
erred in its judgment. Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Rodriguez-Parra, 581 F.3d 227, 230 (5th Cir. 2009).
      Morales-Sanchez’s judgment of conviction is AFFIRMED.




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