Case: 16-40889 Document: 00514984424 Page: 1 Date Filed: 06/05/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-40889 Fifth Circuit Conference Calendar FILED June 5, 2019 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. MAXIMO ANASTACIO-MORALES, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:15-CR-1428-1 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JOLLY, JONES and SOUTHWICK, Circuit Judges. PER CURIAM:* Maximo Anastacio-Morales pled guilty to reentering the United States in violation of 8 U.S.C. § 1326. He was sentenced to 48 months imprisonment under 8 U.S.C. § 1326(b)(2) based on a determination that he had been deported following an aggravated felony conviction. The United States * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-40889 Document: 00514984424 Page: 2 Date Filed: 06/05/2019 No. 16-40889 Supreme Court granted a writ of certiorari, vacated our judgment and remanded for us to consider a recent opinion from that Court regarding aggravated felonies. After consideration of the new caselaw, we again AFFIRM. FACTUAL AND PROCEDURAL HISTORY Anastacio-Morales argued for the first time in his initial appeal that the district court committed reversible error in characterizing his prior Texas aggravated assault conviction as an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(F). That Section provides that an “aggravated felony” includes “a crime of violence” as defined in 18 U.S.C. § 16, which includes both an “elements clause” and a “residual clause.” Anastacio-Morales argued that his conviction necessarily relied upon the residual clause in Section 16(b), which he argued was unconstitutionally vague under the reasoning of Johnson v. United States, 135 S. Ct. 2551 (2015). At the time, Anastacio-Morales’s argument was foreclosed by United States v. Gonzales-Longoria, 831 F.3d 670 (5th Cir. 2016), vacated, 138 S. Ct. 2668 (2018) (mem.). We granted Anastacio- Morales’s motion for summary affirmance so that he might seek further review. United States v. Anastacio-Morales, 677 F. App’x 167, 168 (5th Cir. 2017). The Supreme Court agreed with his argument, granted his writ of certiorari, vacated our judgment, and remanded. Aguirre-Arellano v. United States, 138 S. Ct. 1978 (2018) (grant of writs of certiorari for several petitioners, including Anastascio-Morales). The Court ordered us on remand to consider the applicability of its ruling in another case that Section 16(b) was unconstitutionally vague as incorporated into the definition of an “aggravated felony” in the Immigration and Nationality Act. Sessions v. Dimaya, 138 S. Ct. 1204, 1210-23 (2018). This 2 Case: 16-40889 Document: 00514984424 Page: 3 Date Filed: 06/05/2019 No. 16-40889 court then directed the parties to file letter briefs regarding what action we should take on remand, and the parties did so. DISCUSSION Anastacio-Morales did not object to his sentence, so we review for plain error. See United States v. ...
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