UNITED STATES v. GONZALEZ BAUTISTA (2018)

ON REMAND FROM THE UNITED STATES SUPREME COURT

On December 1, 2016, we issued an opinion denying Daniel Gonzalez-Bautista’s challenge to 18 U.S.C. § 16(b). United States v. Gonzalez-Bautista, 671 Fed.Appx. 237 (5th Cir. 2016). Gonzalez-Bautista argued that § 16(b)’s definition of “crime of violence” was unconstitutionally vague under Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and that his Texas conviction for aggravated assault, see Tex. Penal Code § 22.02, was not an “aggravated felony” for purposes of his conviction for illegal reentry under 8 U.S.C. § 1326(b)(2). See 8 U.S.C. § 1101(a)(43)(F) (defining “aggravated felony” as including “a crime of violence” as defined in 18 U.S.C. § 16). We granted the Government’s motion for summary affirmance, as Gonzalez-Bautista’s argument was foreclosed by our circuit precedent at the time. See United States v. Gonzalez-Longoria, 831 F.3d 670, 673 (5th Cir. 2016). Gonzalez-Bautista petitioned the U.S. Supreme Court for certiorari. After deciding in Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), that § 16(b)’s definition of “crime of violence” was unconstitutionally vague, the Supreme Court vacated and remanded Gonzalez-Bautista’s case for further consideration in light of Dimaya. We requested supplemental briefing from the parties.

Gonzalez-Bautista and the Government agree that, after Dimaya, his conviction under 8 U.S.C. § 1326(b)(2) cannot be affirmed on the basis of § 16(b)’s unconstitutionally vague definition of “crime of violence.” The parties disagree, however, over whether his conviction may properly be affirmed on the alternative basis that his Texas aggravated assault conviction has as “an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). We exercise our discretion to remand to the district court to consider this issue in the first instance.

Accordingly, we REMAND for further proceedings consistent herewith.

FOOTNOTES

FOOTNOTE.  

PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.