USA v. Daniel Gonzalez-Bautista, No. 15-41467 (5th Cir. 2018)

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This opinion or order relates to an opinion or order originally issued on December 1, 2016.

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Case: 15-41467 Document: 00514664527 Page: 1 Date Filed: 10/02/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-41467 United States Court of Appeals Fifth Circuit FILED October 2, 2018 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff - Appellee v. DANIEL GONZALEZ-BAUTISTA, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:15-CR-267-1 ON REMAND FROM THE UNITED STATES SUPREME COURT Before HAYNES, HO, and DUNCAN, Circuit Judges. PER CURIAM:* On December 1, 2016, we issued an opinion denying Daniel GonzalezBautista’s challenge to 18 U.S.C. § 16(b). United States v. Gonzalez-Bautista, No. 15-41467, 2016 WL 7028978 (5th Cir. Dec. 1, 2016). Gonzalez-Bautista argued that § 16(b)’s definition of “crime of violence” was unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551 (2015), and that his 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 15-41467 Document: 00514664527 Page: 2 Date Filed: 10/02/2018 No. 15-41467 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 GonzalezBautista’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). Gonzales-Bautista petitioned the U.S. Supreme Court for certiorari. After deciding in Sessions v. Dimaya, 138 S. Ct. 1204 (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. 2