     Case: 16-40889      Document: 00514984424         Page: 1    Date Filed: 06/05/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals
                                    No. 16-40889                                 Fifth Circuit

                                 Conference Calendar                           FILED
                                                                            June 5, 2019
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

              Plaintiff - Appellee

v.

MAXIMO ANASTACIO-MORALES,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1428-1


ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, JONES and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Maximo Anastacio-Morales pled guilty to reentering the United States
in violation of 8 U.S.C. § 1326. He was sentenced to 48 months imprisonment
under 8 U.S.C. § 1326(b)(2) based on a determination that he had been
deported following an aggravated felony conviction.                 The United States


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40889
Supreme Court granted a writ of certiorari, vacated our judgment and
remanded for us to consider a recent opinion from that Court regarding
aggravated felonies.    After consideration of the new caselaw, we again
AFFIRM.


                 FACTUAL AND PROCEDURAL HISTORY
      Anastacio-Morales argued for the first time in his initial appeal that the
district court committed reversible error in characterizing his prior Texas
aggravated assault conviction as an aggravated felony as defined by 8 U.S.C.
§ 1101(a)(43)(F). That Section provides that an “aggravated felony” includes
“a crime of violence” as defined in 18 U.S.C. § 16, which includes both an
“elements clause” and a “residual clause.” Anastacio-Morales argued that his
conviction necessarily relied upon the residual clause in Section 16(b), which
he argued was unconstitutionally vague under the reasoning of Johnson v.
United States, 135 S. Ct. 2551 (2015).        At the time, Anastacio-Morales’s
argument was foreclosed by United States v. Gonzales-Longoria, 831 F.3d 670
(5th Cir. 2016), vacated, 138 S. Ct. 2668 (2018) (mem.). We granted Anastacio-
Morales’s motion for summary affirmance so that he might seek further
review. United States v. Anastacio-Morales, 677 F. App’x 167, 168 (5th Cir.
2017). The Supreme Court agreed with his argument, granted his writ of
certiorari, vacated our judgment, and remanded. Aguirre-Arellano v. United
States, 138 S. Ct. 1978 (2018) (grant of writs of certiorari for several
petitioners, including Anastascio-Morales).
      The Court ordered us on remand to consider the applicability of its ruling
in another case that Section 16(b) was unconstitutionally vague as
incorporated into the definition of an “aggravated felony” in the Immigration
and Nationality Act. Sessions v. Dimaya, 138 S. Ct. 1204, 1210-23 (2018). This


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                                  No. 16-40889
court then directed the parties to file letter briefs regarding what action we
should take on remand, and the parties did so.
                                 DISCUSSION
      Anastacio-Morales did not object to his sentence, so we review for plain
error. See United States v. Fuentes, 906 F.3d 322, 325 (5th Cir. 2018). To show
plain error, Anastacio-Morales must show “an error that is clear or obvious —
‘rather than subject to reasonable dispute’ — and affects his substantial
rights.” Id. (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). If
that showing is made, the “court has the discretion to correct the error only if
it ‘seriously affect[s] the fairness, integrity[,] or public reputation of judicial
proceedings.’” Id. (alterations in original) (quoting Puckett, 556 U.S. at 135).
      A defendant convicted of illegal reentry who does not have relevant prior
convictions faces a maximum sentence of two years imprisonment. See 8
U.S.C. § 1326(a). If the defendant had previously been removed after any
felony conviction other than an aggravated felony, the statutory maximum is
ten years.   8 U.S.C. § 1326(b)(1).     If removal was after conviction of an
aggravated felony, the statutory maximum increases to twenty years. 8 U.S.C.
§ 1326(b)(2). “Aggravated felony” under the immigration statutes includes “a
crime of violence . . . for which the term of imprisonment [is] at least one year.”
8 U.S.C. § 1101(a)(43)(F).    “Crime of violence” is defined in the partially
invalidated 18 U.S.C. § 16. That statute contains two clauses. One is the
“elements clause” of Section 16(a), which 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.” The other is the now-
invalid “residual clause” of Section 16(b), which includes “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.”
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                                 No. 16-40889
      The resolution of this case turns on whether Anastacio-Morales’s Texas
aggravated assault conviction constitutes a crime of violence under the
“elements” clause of Section 16(a) or whether the district court necessarily
relied on the now-invalid residual clause in Section 16(b).      If his Section
1326(b)(2) conviction rests solely on Section 16(b), we must reform the
conviction to reflect that he was sentenced under Section 1326(b)(1) rather
than Section 1326(b)(2). See United States v. Godoy, 890 F.3d 531, 542 (5th
Cir. 2018). If Texas aggravated assault instead qualifies as a crime of violence
under Section 16(a), then judgment under Section 1326(b)(2) was proper. See
United States v. Garrido, 736 F. App’x 77, 78-79 (5th Cir. 2018).
      Anastacio-Morales argues that his underlying offense did not qualify as
a crime of violence under Section 16(a). His argument is this. An “aggravated
assault” exists when the accused commits simple assault, as defined in TEX.
PENAL CODE § 22.01, and the accused caused serious bodily injury or exhibited
a deadly weapon, TEX. PENAL CODE § 22.02(a)(1)-(2). We previously held that
the relevant Texas assault provision did not qualify as a crime of violence
under Section 16(a) because it can be committed by “any of a number of acts,
without use of ‘destructive or violent force.’”     United States v. Villegas-
Hernandez, 468 F.3d 874, 879-83 (5th Cir. 2006). Since the Supreme Court’s
remand in this case, though, we have held that there is no valid distinction
between direct and indirect force for the purposes of identifying a predicate
conviction as a crime of violence, overruling among other precedents the
Villegas-Hernandez opinion relied upon here.       See United States v. Reyes-
Contreras, 910 F.3d 169, 181-82 (5th Cir. 2018).
      The government argues that Anastacio-Morales’s sentence should be
affirmed because the Texas aggravated assault conviction constitutes an
aggravated felony under Section 16(a). It bases its argument on the fact that
we have held that Texas aggravated assault with a deadly weapon constitutes
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                                  No. 16-40889
a crime of violence under the identically-worded definition in Section 4B1.2 of
the Sentencing Guidelines; that is because the offense “has as an element the
threatened use of physical force against the person of another.” United States
v. Shepherd, 848 F.3d 425, 427-28 (5th Cir. 2017). We often interpret various
crime of violence provisions interchangeably. See United States v. Moore, 635
F.3d 774, 776 (5th Cir. 2011). As additional support, the government cites a
number of nonprecedential opinions in which we have relied on Shepherd to
reject defendants’ arguments that Texas aggravated assault does not
constitute a crime of violence. See United States v. Owen, 700 F. App’x 384,
384 (5th Cir. 2017); United States v. Favors, 694 F. App’x 281, 282 (5th Cir.
2017); United States v. Cruz, 691 F. App’x 204, 205 (5th Cir. 2017).
      The district court did not plainly err in classifying Anastacio-Morales’s
offense as a crime of violence in light of Shepherd and this circuit’s reliance on
identically-worded crime of violence definitions in other contexts. Cf. United
States v. Perez-de Leon, 755 F. App’x 374, 375-78 (5th Cir. 2018) (identifying
and analyzing conflicting case law).
      AFFIRMED.




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