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. We affirm the sentence and judgment imposed. 

Gomez Gomez 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

Clerk
No. 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 and 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 Ex 

Post Facto Clause should preclude the retroactive application of ReyesContreras. See U.S. CONST. art I, §§ 9–10. The Ex Post Facto 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). In Bouie, the 

Supreme Court held that a defendant’s due process rights could be violated by

a retroactive application of an 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 that put the circuit back into compliance with the precedents of other 

circuits. Reyes-Contreras, 910 F.3d at 180–81 (“The Fifth Circuit stands alone 

 

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 unconstitutionally 

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

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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

held 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 182. 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. VillegasHernandez, 468 F.3d 874 (5th Cir. 2006), which held that Texas simple bodily 

assault did not require the use of force and was not a crime of violence). 

Therefore, the district court’s decision is affirmed.