United States v. Ignacio Arreola-Mendoza ( 2020 )

Case: 20-40068 Document: 00515528108 Page: 1 Date Filed: 08/14/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 14, 2020
No. 20-40068
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Ignacio Arreola-Mendoza,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-1751-1
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Ignacio Arreola-Mendoza appeals his 37-month, within-guidelines
sentence for illegal reentry following removal. Arreola-Mendoza contends
that the district court plainly erred by characterizing his prior Texas
conviction for aggravated assault under Tex. Penal Code § 22.02(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opinion should not be published and is not precedent except under the limited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: 20-40068 Document: 00515528108 Page: 2 Date Filed: 08/14/2020
No. 20-40068
as a crime of violence under 18 U.S.C. § 16 and, thus, as an aggravated felony
under 8 U.S.C. §§ 1101(a)(43)(F) and 1326(b)(2). He asserts that Texas
aggravated assault does not qualify as an aggravated felony because it can be
committed recklessly. The Government moves for summary affirmance,
contending that Arreola-Mendoza’s argument is foreclosed by United States
v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc), and United States
v. Gracia-Cantu, 920 F.3d 252 (5th Cir.), cert. denied, 140 S. Ct. 157 (2019).
Arreola-Mendoza correctly concedes that his argument is foreclosed,
and he raises it only to preserve the issue for future review. See Gracia-Cantu,
920 F.3d at 253–55 (holding that assault causing bodily injury under Tex.
Penal Code § 22.01(a)(1) is a crime of violence under § 16(a)); Reyes-
Contreras, 910 F.3d at 180–85 (holding that an offense is a crime of violence
under § 16(a) if, among other things, it is committed recklessly); see also
United States v. Gomez Gomez, 917 F.3d 332, 333–34 (5th Cir. 2019) (holding
that aggravated assault under Tex. Penal Code § 22.02(a)(1) is a crime
of violence under § 16(a) and thus qualifies as an aggravated felony for
purposes of § 1326(b)(2)), petition for cert. filed (U.S. July 19, 2019) (No. 19-
5325). Consequently, the Government is “clearly right as a matter of law so
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 to extend the time to file its brief is
DENIED AS MOOT.
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