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United States v. Jose Ramos , 690 F. App'x 880 ( 2017 )


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  •      Case: 16-41483      Document: 00514038038         Page: 1    Date Filed: 06/19/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41483                               FILED
Summary Calendar                         June 19, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ARMANDO RAMOS, also known as Jose Marquez-Ramos,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:16-CR-380-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Jose Armando Ramos appeals following his conviction for illegal reentry.
He argues that his prior conviction for aggravated assault in violation of Texas
Penal Code § 22.02 was improperly characterized as a crime of violence for
purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). He also argues that the entry of
judgment under 8 U.S.C. § 1326(b)(2) was erroneous because Texas aggravated
assault is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), which
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41483    Document: 00514038038     Page: 2    Date Filed: 06/19/2017
No. 16-41483
defines aggravated felony by reference to 18 U.S.C. § 16. Ramos failed to object
to these determinations in the district court; therefore, we review for plain
error. See United States v. Henao-Melo,
    591 F.3d 798
    , 801 (5th Cir. 2009); see
also Puckett v. United States,
    556 U.S. 129
    , 135 (2009).
In United States v. Guillen-Alvarez,
    489 F.3d 197
    , 199-01 (5th Cir. 2007),
we held that a conviction for aggravated assault in violation of Texas Penal
Code § 22.02 qualifies as the enumerated offense of aggravated assault, and,
thus, a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). Guillen-Alvarez
remains valid after Mathis v. United States,
    136 S. Ct. 2243 
    (2016). United
States v. Shepherd,
    848 F.3d 425
    , 427-28 (5th Cir. 2017). We are bound by our
own precedent unless and until that precedent is altered by a decision of the
Supreme Court or this court sitting en banc. See United States v. Setser,
    607 F.3d 128
    , 131 (5th Cir. 2010).
We have also rejected a challenge to the constitutionality of § 16(b) based
on Johnson v. United States,
    135 S. Ct. 2551 
    (2015). See United States v.
Gonzalez-Longoria,
    831 F.3d 670
    , 672-79 (5th Cir.) (en banc), petition for cert.
filed (Sept. 29, 2016) (No. 16-6259). The grant of certiorari in Lynch v. Dimaya,
    137 S. Ct. 31 
    (2016), does not alter our holding in Gonzalez-Longoria. See
    Setser, 607 F.3d at 131
    . The judgment of the district court is AFFIRMED.
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