United States v. Jonathan Gomez ( 2020 )

Case: 19-11068 Document: 00515463005 Page: 1 Date Filed: 06/23/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-11068 June 23, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JONATHAN WALLACE GOMEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:19-CR-16-1
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Jonathan Wallace Gomez appeals the 264-month sentence imposed
following his convictions for carjacking and possession of a firearm in
furtherance of a crime of violence. Gomez argues that the district court
reversibly erred in applying the career offender enhancement, pursuant to
U.S.S.G. §§ 4B1.1 and 4B1.2, to his sentence based on his Texas conviction for
aggravated assault causing serious bodily injury. Gomez urges that the Texas
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-11068 Document: 00515463005 Page: 2 Date Filed: 06/23/2020
No. 19-11068
aggravated assault statute is broader than generic aggravated assault and
lacks force as an element.
The Government has filed an unopposed motion for summary
affirmance, correctly asserting that the issue raised on appeal is foreclosed.
See United States v. Guillen-Alvarez, 489 F.3d 197, 200–01 (5th Cir. 2007)
(holding that a Texas aggravated assault conviction under TEXAS PENAL CODE
§ 22.02 is a crime of violence under the former U.S.S.G. § 2L1.2); see also
United States v. Shepherd, 848 F.3d 425, 427–28 (5th Cir. 2017) (reaffirming
the continued validity of Guillen-Alvarez after Mathis v. United States, 136 S.
Ct. 2243 (2016), and specifically holding that a Texas aggravated assault
conviction is a crime of violence under U.S.S.G. §§ 2K2.1 and 4B1.2); United
States v. Gomez Gomez, 917 F.3d 332, 333–34 (5th Cir.), petition for cert. filed
(U.S. July 19, 2019) (No. 19-5325) (holding Texas aggravated assault qualifies
as a crime of violence under 18 U.S.C. § 16(a) because it includes as an element
the use of force).
Gomez concedes that the sole issue raised on appeal is foreclosed by our
precedent, but he seeks to preserve it for further review. Accordingly,
summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969). The Government’s motion for summary
affirmance is therefore GRANTED, and the judgment of the district court is
AFFIRMED. The Government’s alternative motion for an extension of time to
file a brief is DENIED.
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