United States v. Garcia ( 2022 )

Case: 20-40377 Document: 00516165306 Page: 1 Date Filed: 01/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 13, 2022
No. 20-40377 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Angel Mondragon Garcia,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:19-CR-2156-1
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
In January 2020, Angel Mondragon Garcia pleaded guilty to illegal
reentry into the United States, in violation of 8 U.S.C. §§ 1326(a) and (b)(2).
He was sentenced that June to, inter alia, 37 months’ imprisonment.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40377 Document: 00516165306 Page: 2 Date Filed: 01/13/2022
No. 20-40377
Garcia appealed, contending, inter alia: the district court plainly erred
in treating his prior Texas conviction for aggravated assault as a crime of
violence under 18 U.S.C. § 16 (defining crime of violence) and, therefore, as
an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F) (defining
aggravated felony as crime of violence) and § 1326(b)(2) (criminal penalties
for reentry of certain removed aliens). Because he did not preserve the
aggravated-assault issue in district court, review was only for plain error.
E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Garcia
maintained his prior Texas conviction for aggravated assault—in violation of
Texas Penal Code § 22.02(a)—did not constitute a crime of violence because
the Texas conviction included reckless conduct, which does not involve “the
use, attempted use, or threatened use of physical force” element required by
§ 16. See 18 U.S.C. § 16(a).
Our court affirmed, based on our precedent providing that Garcia’s
violation of Texas Penal Code § 22.02(a) constituted a crime of violence. See
United States v. Gracia-Cantu, 920 F.3d 252, 253–54 (5th Cir. 2019) (per
curiam) (holding conviction under Texas Penal Code § 22.01(a)(1), which §
22.02(a) incorporates, is a crime of violence). (We also remanded in part for
the limited purpose of the court’s correcting the written judgment to
conform to its oral pronouncement at sentencing. That issue is not before
our court on remand.) United States v. Garcia, 838 Fed. App’x 901 (5th Cir.
2021) (per curiam).
The Supreme Court has since held: the definition of “violent
felony”—requiring “use of physical force against the person of another”—
does not include reckless behavior. See Borden v. United States, 141 S. Ct.
1817, 1825 (2021) (plurality opinion).
2
Case: 20-40377 Document: 00516165306 Page: 3 Date Filed: 01/13/2022
No. 20-40377
Accordingly, the Court granted Garcia’s petition for a writ of
certiorari, vacated our decision, and remanded for further consideration in
the light of Borden.
Garcia is scheduled to be released on 9 June 2022. Therefore, this
matter is REMANDED to district court for expedited consideration of
Garcia’s sentence in the light of Borden.
REMANDED FOR EXPEDITED CONSIDERATION.
3