United States v. Daniel Rivera-Hernandez ( 2017 )

Case: 16-40149 Document: 00513904104 Page: 1 Date Filed: 03/09/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40149 FILED
Summary Calendar March 9, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL RIVERA-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:15-CR-785-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Daniel Rivera-Hernandez pleaded guilty to illegal reentry of the United
States after removal. On appeal, he argues that the district court plainly erred
in entering judgment under 8 U.S.C. § 1326(b)(2). His contention is that his
prior Utah aggravated assault conviction, for which he was sentenced to 1 to
15 years of imprisonment, was not an aggravated felony. Rivera-Hernandez
does not brief a challenge to his 60-month sentence of imprisonment or to the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40149
manner in which his sentence was determined, and he has therefore waived
any challenge to such issues. See United States v. Thibodeaux, 211 F.3d 910,
912 (5th Cir. 2000).
For purposes of § 1326(b)(2), the term “aggravated felony” is defined in
8 U.S.C. § 1101(a)(43). See United States v. Mondragon-Santiago, 564 F.3d
357, 367 (5th Cir. 2009). An offense is an aggravated felony if it is “a crime of
violence (as defined in section 16 of Title 18, but not including a purely political
offense) for which the term of imprisonment [is] at least one year.”
§ 1101(a)(43)(F) (internal footnote omitted).
In view of 18 U.S.C. § 16(b), we conclude that there was no error, plain
or otherwise, in the determination that Rivera-Hernandez’s prior Utah
aggravated assault conviction is a crime of violence as defined in § 16 and thus
an aggravated felony under § 1101(a)(43)(F). Rivera-Hernandez’s aggravated
assault conviction required the intent to cause serious bodily injury. See State
v. Hutchings, 285 P.3d 1183, 1187 (Utah 2012); State v. Velarde, 734 P.2d 449,
453 (Utah 1986). When considering whether an offense is a crime of violence
under § 16(b), we determine whether “in the ordinary case . . . the perpetrator
uses or risks the use of physical force in committing the offense.” Perez-Munoz
v. Keisler, 507 F.3d 357, 364 (5th Cir. 2007). “Being able to imagine unusual
ways the crime could be committed without the use of physical force does not
prevent it from qualifying as a crime of violence under § 16(b).” Id.
As Rivera-Hernandez concedes, his contention that the definition in
§ 16(b) is unconstitutionally vague in light of Johnson v. United States, 135
S. Ct. 2551, 2555-57 (2015), is foreclosed by our decision in United States
v. Gonzalez-Longoria, 831 F.3d 670, 677 (5th Cir. 2016) (en banc), petition for
cert. filed (Sept. 29, 2016) (No. 16-6259). To the extent that Rivera-Hernandez
requests that we hold his appeal in abeyance pending an anticipated Supreme
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No. 16-40149
Court decision addressing the constitutionality of § 16(b), see Lynch v. Dimaya,
137 S. Ct. 31 (2016), we decline to do so, as we remain bound by our own
precedent unless and until that precedent is altered by a decision of the
Supreme Court. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).
Because we have determined that, in view of § 16(b), there was no error,
plain or otherwise, in the entry of judgment under § 1326(b)(2), we need not
address Rivera-Hernandez’s contention that his Utah aggravated assault
conviction is not a crime of violence under § 16(a). Likewise, we need not
determine the standard of review applicable to that issue.
AFFIRMED.
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