from the United States District Court for the Southern
District of Texas
REMAND FROM THE SUPREME COURT OF THE UNITED STATES
JOLLY, SOUTHWICK, and OLDHAM, Circuit Judges.
H. SOUTHWICK JUDGE.
2017, we summarily affirmed the defendant's sentence for
his conviction of an illegal reentry subsequent to a
deportation. We relied on Fifth Circuit precedent that his
prior Texas aggravated assault conviction was a crime of
violence under 18 U.S.C. § 16(b), which permitted a
higher maximum sentence for his illegal reentry. The Supreme
Court granted the defendant's petition for writ of
certiorari, vacated our decision, and remanded for us to
consider the effect of that Court's decision that Section
16(b) was unconstitutionally vague. Consideration given, we
conclude the prior state conviction is a crime of violence
under Section 16(a). AFFIRMED.
AND PROCEDURAL BACKGROUND
December 2015, Albin Alexander Torres pled guilty to
violating 8 U.S.C. § 1326(a) for his illegal reentry
into the United States after being removed in 2012. Relevant
to his sentence was a 2010 conviction for aggravated assault
under a Texas statute. We will examine the Texas conviction
in more detail later, but for now it suffices to say the
presentence report considered that conviction to have been
for an aggravated felony. The district court agreed. This is
important because 8 U.S.C. § 1326(b)(2) increases the
maximum sentence of imprisonment for a Section 1326(a)
conviction to 20 years when the alien's "removal was
subsequent to a conviction for commission of an aggravated
felony." The district court did not sentence anywhere
near that maximum, imposing 56 months in prison.
1326 is part of the Immigration and Nationality Act, which
lists more than a score of aggravated felonies. See
8 U.S.C. § 1101(a)(43). The relevant one here is "a
crime of violence (as defined in section 16 of Title 18 . .
.) for which the term of imprisonment [is] at least one
year." § 1101(a)(43)(F). The referenced Section 16
identifies two categories of crimes of violence:
(a) an offense that has as an element the use, attempted use,
or threatened use of physical force against the person or
property of another; or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
18 U.S.C. § 16.
first considered Torres's argument that Section
1326(b)(2) should not apply, we applied a recent en banc
decision of this court to hold that the language of Section
16(b) was not unconstitutionally vague. See United States
v. Torres, 677 Fed.Appx. 145, 146 (5th Cir. 2017)
(citing United States v. Gonzalez-Longoria, 831 F.3d
670 (5th Cir. 2016) (en banc), vacated, 138 S.Ct.
2668 (2018)). We therefore granted the government's
motion for summary affirmance. See id. The Supreme
Court returned this case to us for further consideration in
light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018),
which declared Section 16(b) to be unconstitutionally vague.
See Aguirre-Arellano v. United States, 138 S.Ct.
1978 (2018) (opinion addressing several petitioners,
received supplemental briefing and ...