United States v. Pineda Penate ( 2023 )

Case: 22-20661 Document: 00516813669 Page: 1 Date Filed: 07/07/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-20661
FILED
July 7, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Miguel Angel Pineda Penate,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:22-CR-135-1
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam:*
Miguel Angel Pineda Penate pleaded guilty, in September 2022, to
one count of being unlawfully present in the United States after having been
previously deported and convicted of an aggravated felony, in violation of 8
U.S.C. § 1326(a) and (b). The conviction that qualified Pineda Penate for
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20661 Document: 00516813669 Page: 2 Date Filed: 07/07/2023
No. 22-20661
commission of an aggravated felony was aggravated assault under Texas
Penal Code § 22.01(a)(1).
In our recent decision in United States v. Gomez Gomez, 23 F.4th 575,
576-77 (5th Cir. 2022), we addressed this specific statute in light of the
Supreme Court’s decision in Borden v. United States, 141 S. Ct. 1817 (2021).
We held that § 22.01(a)(1) does not define an aggravated felony under Borden
because it includes three indivisible mental states, one of which is
recklessness. Therefore, because Pineda Penate’s prior conviction for
assault under § 22.01(a)(1) does not qualify as an aggravated felony, his
sentence should not have been enhanced pursuant to § 1326(b)(2).
This case is REMANDED with instruction for the sentence to be
reformed in line with this opinion.
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