United States v. Alan Gomez Gomez ( 2019 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-20526 FILED
February 25, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
ALAN VICTOR GOMEZ GOMEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before CLEMENT, HIGGINSON, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
Appellant Alan Victor Gomez Gomez pled guilty to illegally reentering
the United States after deportation. He appeals from the sentence and
judgment imposed under 8 U.S.C. § 1326(b)(2), which took into account his
prior conviction for bodily-injury aggravated assault under Tex. Penal Code
§ 22.02. We affirm the sentence and judgment imposed.
Gomez Gomez argues that he is not subject to § 1326(b)(2) because Texas
aggravated assault does not qualify as a “crime of violence” under 18 U.S.C.
§ 16. Specifically, he contends that Texas aggravated assault does not fall
No. 17-20526
under the “elements clause” at § 16(a) or the “residual clause” at § 16(b). 1
Gomez Gomez argues that Texas aggravated assault lacks the “use of force” as
an element because aggravated assault can be accomplished through indirect
use of force. The issue has been properly preserved, so we review de novo.
United States v. Narez-Garcia, 819 F.3d 146, 149 (5th Cir. 2016).
This court’s recent en banc decision in United States v. Reyes-Contreras,
910 F.3d 169 (5th Cir. 2018) (en banc), abrogated the previous Fifth Circuit
distinction between direct and indirect use of force. Id. at 180–81. Instead, it
applied United States v. Castleman, which held that the “use of force”
encompassed the common-law definition of force—including offensive touching
and indirect applications of force. 572 U.S. 157, 162–68 (2014).
As a preliminary matter, Gomez Gomez argues Reyes-Contreras should
not apply because it is a change in the law after his arrest. He argues the Ex
Post Facto Clause should preclude the retroactive application of Reyes-
Contreras. See U.S. CONST. art I, §§ 9–10. The Ex Post Facto Clause does not
apply to the judiciary. Rogers v. Tennessee, 532 U.S. 451, 460 (2001). But a
retroactively applied judicial decision can, in theory, violate the Due Process
Clause. Bouie v. City of Columbia, 378 U.S. 347, 353–54 (1964). In Bouie, the
Supreme Court held that a defendant’s due process rights could be violated by
a retroactive application of an unexpected and indefensible expansion of
substantive criminal liability. Id. at 353–54. But Reyes-Contreras did not
make previously innocent activities criminal. It simply applied Castleman in
a way that put the circuit back into compliance with the precedents of other
circuits. Reyes-Contreras, 910 F.3d at 180–81 (“The Fifth Circuit stands alone
1Gomez Gomez points out that, under the Supreme Court’s recent decision in Sessions
v. Dimaya, 138 S. Ct. 1204, 1210 (2018), 18 U.S.C. § 16(b) has been deemed unconstitutionally
vague. As the offense at issue qualifies as a crime of violence under § 16(a), however, Dimaya
does not constrain our holding here.
2
No. 17-20526
in restricting the reasoning of Castleman on direct versus indirect force to
misdemeanor crimes of domestic violence.”). Reyes-Contreras was neither
unexpected nor indefensible.
Gomez Gomez’s objections to his sentencing fail because Reyes-Contreras
held that Castleman “is not limited to cases of domestic violence and that for
purposes of identifying a conviction as a [crime of violence], there is no valid
distinction between direct and indirect force.” Id. at 182. This holding
forecloses Gomez Gomez’s argument that aggravated assault does not require
the use of force. See id. at 181–82 (overruling United States v. Villegas-
Hernandez, 468 F.3d 874 (5th Cir. 2006), which held that Texas simple bodily
assault did not require the use of force and was not a crime of violence).
Therefore, the district court’s decision is affirmed.
3