### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 20526

UNITED STATES OF AMERICA,
Plaintiff

- Appellee

v. ALAN VICTOR GOMEZ GOMEZ,
Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas

Before CLEMENT, HIGGINSON, and HO, Circuit Judges

. JAMES C. HO , Circuit Judge : Appellant Alan Victor Gomez Gomez pled guilty to illegally reentering the United States after deportation. He appeals from the sentence and judgment imposed under 8 U.S.C. § 1326(b)(2), which took into account his prior conviction for bodily

- injury aggravated assault under Tex. Penal Code § 22.02. W e affirm the sentence and judgment imposed. G omez G omez argues that he is not subject to § 1326(b)(2) because Texas aggravated assault does not qualify as a “crime of violence” under 18 U.S.C. § 16. Specifically, he contends that Texas aggravated assault does not fall United States Court of Appeals Fifth Circuit 

### FILED February 25 , 2019 Lyle W. Cayce ClerkNo. 17

- 20526

2 under the “elements clause” at § 16(a) or the “residual clause” at § 16(b). 1 Gomez Gomez argues that Texas aggravated assault lacks the “use of force” as an element because aggravated assault can be accomplished through indirect use of force

. The issue has been properly preserved, so we review de novo. United States v. Narez

- Garcia , 819 F.3d 146, 149 (5th Cir. 2016 )

. This court’s recent en banc decision in United States v. Reyes

- Contreras , 910 F.3d 169 (5th Cir. 2018) (en banc) , abrogated the previous Fifth Circuit distinction between direct an d indirect use of force. Id . at 180

– 81 . Instead, it applied United States v. Castleman , which held that the “use of force” encompassed the common

- law definition of force

— including offensive touching and indirect applications of force. 572 U.S. 157, 162

– 68 (2014). As a preliminary matter , Gomez Gomez argues Reyes

- Contreras should not apply because it is a change in the law after his arrest. He argues the E x P ost F acto C lause should preclude the retroactive application of Reyes

Contreras

. See U.S. C O NST

. art I, §§ 9

– 10. The Ex Post Fact o Clause does not apply to the judiciary

. Rogers v. Tennessee , 532 U.S. 451, 460 (2001) . But a retroactively applied judicial decision can, in theory, violate the Due Process Clause. Bouie v. City of Columbia , 378 U .S. 347, 353

– 54 (1964 ). I n Bouie , the Supreme Court held that a defendant ’s due process rights could be violated by a retroactive application of a n unexpected and indefensible expansion of substantive criminal liability

. Id. at 353

– 54

. But Reyes

- Contreras did not make previously innocent activities criminal

. It simply applied Castleman in a way th at put the circuit back into compliance with the precedents of other circuits

. Reyes

- Contreras , 910 F.3d at 180

– 81 (“The Fifth Circuit stands alo ne

1 Gomez Gomez points out that, under the Supreme Court’s recent decision in Sessions v. Dimaya , 138 S. Ct. 1204, 1210 (2018), 18 U.S.C. § 16(b) has been deemed unconsti tutionally vague. As the offense at issue qualifies as a crime of violence under § 16(a), however, Dimaya does not constrain our holding here.No. 17

- 20526

3 in restricting the reasoning of Castleman on direct versus indirect force to misdemeanor crimes of domestic violence.”). Reyes

- Contreras was neither unexpected nor indefensible. Gomez Gomez’s objections to his sentencing fail because Reyes

- Contreras h eld that Castleman “is not limited to cases of domestic violence and that for purposes of identifying a conviction as a [crime of violence], there is no valid distinction between direct and indirect force.” Id. at 18 2

. This holding forecloses Gomez Gomez’s argument that aggravated assault does not require the use of force. See id . at 181

– 82 (overruling United States v. Villegas

Hernandez , 468 F.3d 874 (5th Cir. 2006), which held that Texas simple bodily assault did not require the use of force and w as not a crime of violence). Therefore, the district court’s decision is affirmed.