Case: 15-40108 Document: 00516089958 Page: 1 Date Filed: 11/11/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 11, 2021 No. 15-40108 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jose Lara-Garcia, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 5:14-CR-9-1 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before Davis, Haynes, and Graves, Circuit Judges. Per Curiam:* * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 15-40108 Document: 00516089958 Page: 2 Date Filed: 11/11/2021 No. 15-40108 Jose Lara-Garcia pled guilty, without a plea agreement, to illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326. The district court sentenced him to 46 months’ imprisonment with no term of supervised release. The written judgment reflects that Lara-Garcia was sentenced under 8 U.S.C. § 1326(b)(2), based on the district court’s conclusion that his prior conviction for aggravated assault in Texas qualifies as an “aggravated felony” under § 1326(b)(2). Lara-Garcia argues on appeal that Texas aggravated assault is not a crime of violence under Supreme Court caselaw. He therefore asks that we vacate the judgment and remand for the district court to enter an amended judgment reflecting that he was convicted under § 1326(b)(1), a less serious offense. While we agree that the district court should have sentenced Lara-Garcia under § 1326(b)(1), we reform the district court’s judgment rather than remanding. We have twice affirmed the judgment below, see United States v. Lara- Garcia, 671 F. App’x 248, 249 (5th Cir. 2016); United States v. Lara-Garcia, 772 F, App’x 100 (5th Cir. 2019), but the Supreme Court vacated our latest judgment and remanded for further consideration in light of Borden v. United States, 141 S. Ct. 1817 (2021). Lara-Garcia v. United States, 141 S. Ct. 2780 (2021). The government concedes on remand that, under Borden, the district court erred by entering judgment under 8 U.S.C. § 1326(b)(2), because Lara- Garcia’s Texas aggravated assault conviction does not qualify as a “crime of violence” under 18 U.S.C. § 16. We agree. Lara-Garcia was convicted of violating § 22.02(a) 1 of the Texas Penal Code, an indivisible offense which 1 A person commits aggravated assault in Texas “if the person commits assault as defined in [Texas Penal Code] § 22.01” and either “(1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.” TEX. PENAL CODE § 22.02(a)(1) & (2). An assault under § 22.01 occurs when a person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; 2 Case: 15-40108 Document: 00516089958 Page: 3 Date Filed: 11/11/2021 No. 15-40108 may be committed recklessly, and therefore that conviction cannot form the predicate “aggravated …
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