Case: 16-41483 Document: 00514584947 Page: 1 Date Filed: 08/03/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-41483 FILED Summary Calendar August 3, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSE ARMANDO RAMOS, also known as Jose Marquez-Ramos, Defendant – Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 1:16-CR-380-1 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before REAVLEY, OWEN, and ELROD, Circuit Judges. PER CURIAM:* Our prior opinion in this case was vacated by the Supreme Court and remanded to our court for reconsideration in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Dimaya held that 18 U.S.C. § 16(b) as incorporated into the Immigration and Nationality Act is unconstitutionally vague. 138 S. Ct. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 16-41483 Document: 00514584947 Page: 2 Date Filed: 08/03/2018 No. 16-41483 at 1209–10. Section 16(b) houses the residual clause for defining the term “crime of violence,” and is incorporated by reference into various statutory and Guidelines provisions. See 18 U.S.C. § 16(b); United States v. Godoy, 890 F.3d 531, 537–38 (5th Cir. 2018). Ramos was convicted of illegal reentry and had a prior conviction of aggravated assault under Texas Penal Code § 22.02. He appealed, challenging the classification of his prior conviction as a crime of violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii) and arguing that the entry of judgment under 8 U.S.C. § 1326(b)(2) was erroneous because his prior conviction was not a crime of violence under 8 U.S.C. § 16. Because Ramos failed to raise these objections in the district court, they are reviewed for plain error. United States v. Ramos, 690 F. App’x 880, 880 (5th Cir. 2017) (holding that Ramos’s contentions are subject to plain error review). The parties agree that on remand, Ramos’s first argument—that his Texas conviction for aggravated assault is not a crime of violence under U.S.S.G. § 2L1.2—remains foreclosed. See Godoy, 890 F.3d at 537–40 (holding that § 16(b) as incorporated into the Guidelines is not subject to a void for vagueness challenge); United States v. Guillen-Alvarez, 489 F.3d 197, 199–201 (5th Cir. 2007) (holding that Texas aggravated assault is an enumerated crime of violence for purposes of U.S.S.G § 2L1.2). Therefore, the only issue before us is whether post-Dimaya the district court plainly erred in entering judgment pursuant to § 1326(b)(2). If a conviction qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), which defines an “aggravated felony” by reference to an offense qualifying as a crime of violence under § 16, judgment is properly entered under § 1326(b)(2). 8 U.S.C. § 1101(a)(43)(F); 8 U.S.C. § 1326(b)(2). After Dimaya, a conviction that would be classified as a crime of violence under § ...
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