Summary
The Fifth Circuit held that a prior Texas aggravated assault conviction under Tex. Penal Code § 22.01(a)(2) (threatening another with imminent bodily injury) qualifies as a crime of violence under 18 U.S.C. § 16(a) after Sessions v. Dimaya invalidated § 16(b) as unconstitutionally vague. Applying the modified categorical approach, the court found the Texas assault statute divisible into three distinct offenses and determined that a knowing threat of imminent bodily injury satisfies § 16(a)'s element of threatened use of physical force. The defendant's illegal reentry sentence under 8 U.S.C. § 1326(b)(2) was affirmed because the prior conviction remained an aggravated felony under § 16(a).
Topics
Practice areas
Questions Presented
- Whether Torres's prior Texas conviction for aggravated assault qualifies as a crime of violence under 18 U.S.C. § 16(a) such that it is an aggravated felony supporting an enhanced sentence under 8 U.S.C. § 1326(b)(2).
Holdings
- A conviction under Texas Penal Code § 22.01(a)(2) (knowingly threatening another with imminent bodily injury) has as an element the threatened use of physical force, making it a crime of violence under § 16(a).
Key quotations
“A knowing threat to another of imminent bodily injury, which is the state statute's requirement, is knowingly threatening to employ a force capable of causing physical pain or injury, which is the Section 16(a) requirement.” (at 10)
“We are convinced these are independent groups of elements for committing multiple crimes.” (at 8)
“The Texas Court of Criminal Appeals, supreme in Texas on criminal jurisprudence, has said subparts (1), (2) and (3) of Texas Penal Code Section 22.01(a) define 'three distinct criminal offenses.'” (at 8)
Factual background
Torres illegally reentered the United States after being removed in 2012. He pled guilty to illegal reentry under 8 U.S.C. § 1326(a). The presentence report determined that his prior 2010 Texas conviction for aggravated assault was an aggravated felony, which increased the maximum sentence to 20 years under § 1326(b)(2). The district court adopted that finding and sentenced him to 56 months. The aggravated assault conviction was based on an indictment charging that Torres intentionally and knowingly threatened a family member with imminent bodily injury by using and exhibiting a knife. The parties agreed the conviction was under Texas Penal Code § 22.01(a)(2) (threats) and § 22.02 (aggravating factors).
Procedural history
Torres pled guilty to illegal reentry under 8 U.S.C. § 1326(a). The district court sentenced him to 56 months, applying the enhanced penalty under § 1326(b)(2) because it found his prior Texas aggravated assault conviction was an aggravated felony (a crime of violence under 18 U.S.C. § 16(b)). On appeal, the Fifth Circuit summarily affirmed based on its en banc decision in Gonzalez-Longoria, which held § 16(b) not vague. The Supreme Court granted certiorari, vacated, and remanded for reconsideration in light of Sessions v. Dimaya, which declared § 16(b) unconstitutionally vague. On remand, the Fifth Circuit considered whether the conviction was a crime of violence under § 16(a).