United States v. Rios Benitez ( 2021 )

Case: 20-10494 Document: 00515700577 Page: 1 Date Filed: 01/08/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 8, 2021
No. 20-10494
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Oscar Daniel Rios Benitez,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-1-1
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Oscar Daniel Rios Benitez appeals his 18-month, within-guidelines
sentence for illegal reentry following deportation. Rios Benitez asserts that
the district court plainly erred by characterizing his prior Texas conviction
for assault-family violence under Tex. Penal Code Ann. § 22.01(a)(1),
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10494 Document: 00515700577 Page: 2 Date Filed: 01/08/2021
No. 20-10494
(b)(2) as a crime of violence under 18 U.S.C. § 16 and, thus, as an aggravated
felony pursuant to 8 U.S.C. § 1101(a)(43)(F) and 8 U.S.C. § 1326(b)(2). He
contends that Texas assault-family violence does not qualify as an aggravated
felony because it can be committed recklessly. The Government moves for
summary affirmance, asserting that Rios Benitez’s argument is foreclosed by
United States v. Gracia-Cantu, 920 F.3d 252 (5th Cir.), cert. denied, 140 S. Ct.
157 (2019).
As Rios Benitez correctly concedes, his argument is foreclosed. See
Gracia-Cantu, 920 F.3d at 253–55 (holding that assault causing bodily injury
under Tex. Penal Code Ann. § 22.01(a)(1) and (b)(2) is a crime of
violence under § 16(a)). He raises the issue only to preserve it for future
review. Consequently, the Government is “clearly right as a matter of law,”
such that “there can be no substantial question as to the outcome of the
case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the district court’s judgment is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED AS MOOT.
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