Case: 15-40227 Document: 00514466041 Page: 1 Date Filed: 05/09/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 15-40227 May 9, 2018 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff – Appellee, v. JOSE PRISCILIANO GRACIA-CANTU, Defendant – Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 1:14-CR-815-1 Before KING*, ELROD, and GRAVES, Circuit Judges. PER CURIAM:** We WITHDRAW our prior panel opinion and SUBSTITUTE this opinion. Jose Prisciliano Gracia-Cantu appeals the district court’s determination that a conviction under Texas Penal Code sections 22.01(a)(1) and (b)(2) for “Assault – Family Violence” qualifies as a crime of violence under 18 U.S.C. § 16, and is therefore an aggravated felony for purposes of 8 * Concurring in the judgment only. ** Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Fifth Circuit Rule 47.5.4. Case: 15-40227 Document: 00514466041 Page: 2 Date Filed: 05/09/2018 No. 15-40227 U.S.C. § 1101(a)(43)(F) and U.S.S.G. § 2L1.2(b)(1)(C). Consistent with our binding precedent, we determine that a conviction under Texas Penal Code sections 22.01(a)(1) and (b)(2) does not fall within the definition of a crime of violence under 18 U.S.C. § 16(a). In light of the Supreme Court’s holding that as incorporated in the Immigration and Nationality Act context 18 U.S.C. § 16(b) is unconstitutionally vague, and because the government forfeited the argument that § 16(b) continues to apply in the Guidelines context, we determine that the sentence cannot be supported by § 16(b) either. 1 Therefore, we VACATE Gracia-Cantu’s sentence and REMAND for resentencing. I. Gracia-Cantu pleaded guilty to a single-count indictment for being an alien unlawfully present in the United States following deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(1). Gracia-Cantu had a prior Texas felony conviction for “Assault – Family Violence” under Texas Penal Code sections 22.01(a)(1) and (b)(2). The pre-sentence report recommended an eight-level increase pursuant to 8 U.S.C. § 1101(a)(43)(F) and U.S.S.G. § 2L1.2(b)(1)(C) because Gracia-Cantu had been previously convicted of an aggravated felony prior to deportation. Gracia-Cantu filed an objection to the 1 We do not address the government’s untimely argument, raised in two sentences for the first time in its 28(j) letter after the issuances of Sessions v. Dimaya, 138 S.Ct. 1204 (2017), that Dimaya is not dispositive because Gracia-Cantu’s § 16(b) challenge is essentially a challenge to the Guidelines, which are not subject to a void for vagueness challenge under Beckles v. United States, 137 S. Ct. 886 (2017). See United States v. Scroggins, 599 F.3d 433, 447 (5th Cir. 2010) (noting that “[i]t is not enough to merely mention or allude to a legal theory” and hold that the party forfeited the argument where he “merely mention[ed] it in conclusory sentences tacked to the end of paragraphs”). The government did not argue at any point in its briefing ...
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