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

No. 15

- 40227

UNITED STATES OF AMERICA,
Plaintiff

– Appellee ,

v. JOSE PRISCILIANO GRACIA

- CANTU,
Defendant

– Appellant

.

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:14

- CR

- 815

- 1

Before KING * , ELROD, and GRAVES, Circuit Judges. PER CURIAM: * * Jose Prisciliano Gracia

- Cantu appeals the district court’s determination that a conviction under Texas Penal Code section s 22.01(a)(1) and (b)(2) for “Assault

– Family Vio lence” qualifies as a crime of violence under 18 U.S.C. § 16 , and is therefore an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(F) and U.S .S.G. § 2L1.2(b)(1)(C). C onsistent with our

* C oncurring in the judgment only.

* * Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Fifth Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 2, 2018 Lyle W. Cayce Clerk Case: 15-40227 Document: 00514455367 Page: 1 Date Filed: 05/02/2018No. 15

- 40227

2 binding precedent, we determine that a conviction under Texas Penal Code section s 22.01(a)(1) and (b)(2) does not fall within the definition of a crime of violence under 1 8 U.S.C. § 16(a)

. In light of the Supreme Court’s holding that 1 8 U.S.C. § 16(b) is unconstitutionally vague , we determine that the sentence cannot be supported by § 16(b) either. Therefore, we VACATE Gracia

Cantu’s sentence and REMAND for resentencing. I. Gra cia

- Cantu pleaded guilty to a single

- count indictment for being an alien unlawfully present in the United States following deportation in violation of 8 U.S.C. § § 1326(a) and (b)(1). G ra cia

- Cantu had a prior Te xas felony conviction for “Assau lt

– Family Violence” under Texas Penal Code section s 22.01(a)(1) and (b)(2). The pre

- sentence report recommended an eight

- level increase pursuant to 8 U.S.C. § 1101(a)(43)(F) and U.S.S.G. § 2L1.2(b)(1)(C) because G ra cia

- Cantu had been previously convicted of an aggravated felony prior to deportation. G ra cia

- Cantu filed an objection to the
pre - sentence report, arguing t hat because his prior Texas conviction was not a crime of violence under 18 U.S.C. § 16, the conviction did not qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) and U.S.S.G. § 2L1.2(b)(1)(C)

. As to § 16(a), Gracia

- Cantu objected that the us e of force is not an element of the offense under Fifth Circuit precedent , and as to § 16(b), he objected that the offense does not always entail a substantial risk that force will be used. The government argued that the statutes presented a risk of force , even if they did not require the use of force, and that the statutes do require the use of force under intervening Supreme Court caselaw. The district court overruled the objection , finding that the prior offense was a crime of violence qualifying as a n aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C). In doing so, the district court looked at the prior judgment of conviction, which stated that the bodily injury occurred by Case: 15-40227 Document: 00514455367 Page: 2 Date Filed: 05/02/2018No. 15

- 40227

3 “striking said Maria Garcia on or about the head with an object: to wit, a can.” The district court then stated: “And by striking and, you know, clearly, common sense tells you that you strike somebody with

— I mean, first of all, causing bodily injury by striking her with a can is

— requires force. ” G ra cia

Cantu timely appe aled his 41

- month sentence. II

. We first address whether Gracia

- Cantu’s prior conviction qualifies as a crime of violence under 1 8 U.S.C. § 16(a). When, as here, a defendant properly preserves an objection to the classification of a prior offense as an ag gravated felony, our review is de novo

. United States v. Medina

- Anicacio , 325 F.3d 638, 643 (5th Cir. 2003); see also United States v. Sanchez

- Ledezma , 630 F.3d 447, 449 (5th Cir. 2011) (stating that review is de novo where an “appeal concerns only the interpretation of the United States Sentencing Guidelines and statutory provisions incorporated in the Sentencing Guidelines by reference”). Section 16(a) defines a “ crime of violence ” as: “ an offense that has as an el ement the use, attempted use, or threatened use of physical force against the p erson or prop erty of another .” 1 8 U.S.C . § 16(a). During the pendency of this appeal, multiple Supreme Court and Fifth Circuit decisions interpreting the term “crime of violen ce” in different statutory and Guideline s contexts have shifted the legal landscape. The government argues that the court’s precedent that a con viction under Texas Penal Code section 22.01(a)(1) is not a crime of violence for § 16(a) purposes has been abr ogated by United States v. Castleman , 134 S. Ct. 1405 (2014) , and Voisine v. United States , 136 S. Ct. 2272 (2016)

. See United States v. Villegas

- Hernandez , 468 F.3d 874, 879 (5th Cir. 2006) (holding that the “use of force is not an element of assault und er section 22.01(a)(1), and the assault offen s e does not fit subsection 16(a)’s definition for crime of violence”) ; United States v. Vargas

- Duran , 356 F.3d Case: 15-40227 Document: 00514455367 Page: 3 Date Filed: 05/02/2018No. 15

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4 598, 606 (5th Cir. 2004) (en banc) (stating that there is “a difference between a defendant’s causation of an injury and the defendant’s use of force”)

. The government’s argument, however, is foreclosed by our rule of orderliness. See United States v. Tanksley , 848 F.3d 347, 350 (5th Cir. 2017) ( stating that under the rule of orderliness “ one pane l of this Court may not overrule another” unless a “Supreme Court decision ‘expressly or implicitly’ overrules one of our precedents” ( first quoting United States v. Segura , 747 F.3d 323, 328 (5th Cir. 2014) ; and then quoting United States v. Kirk , 528 F.2 d 1057, 1063 (5th Cir. 1976) ) )

. In United States v. Rico

- Mejia , the court held that “ Castleman does not disturb this court’s precedent regarding the characterization of crimes of violence

. . . . ” 859 F.3d 318, 32 2

– 2 3 (5th Cir. 2017). We again con firmed that Castleman did not overrule our precedent in United States v. Reyes

- Contreras , 882 F.3d 113, 123 (5th Cir. 2018) (“A post

Castleman panel, in United States v. Rico

- Mejia

. . . , has already held that Castleman does not abrogate our decisions on the us e of force under the Guidelines, binding us by the rule of orderliness.”). While the government contends that Rico

- Mejia itself does not adhere to the rule of orderliness, the Reyes

- Contreras decision already determined that Rico

- Mejia is the court’s controlling precedent

. 1 See id. Therefore, under our binding precedent, Gracia

- Cantu’s conviction is not a crime of violence under § 16(a). 2

1 The government acknowledged at oral argument that it raised its argument that Ri co - Mejia did not adhere to the rule of orderliness in its Reyes

- Contreras briefing.

2 Since oral argument in the instant case, the government has filed a petition for rehearing en banc in Reyes

- Contreras , which remains pending. Case: 15-40227 Document: 00514455367 Page: 4 Date Filed: 05/02/2018No. 15

- 40227

5 III. We next address whether Gracia

- Cantu’s conviction qualifies as a crime of violence unde r 1 8 U.S.C. § 16(b). 3 During the pendency of this appeal, the Court held in Sessions v. Dimaya , 138 S. Ct. 1204 (2018), that § 16(b) is unconstitutionally vague. Id. at 1223. The parties agree that Gracia

- Cantu did not object at the time of sentencing t hat § 16(b) is void for vagueness and that review is for plain error. 4 Puzzlingly though, the government utterly fails to br ief the plain

- error issue and instead relies on the foreclosure argument , which is not enough , as the Supreme Court has the last word. Under these circumstances, we are satisfied that appellant has established plain error. To obtain relief under plain

- error review, an appellant must show: (1) an error or defect that was not affirmatively waived; (2) the legal error is clear or obvious; (3) the error affected the appellant’s substantial rights; and (4) if the first three prongs are satisfied, that the court should exercise its discretion to correct the error because it “seriously affects the fairn ess, integrity or public reputation of judicial proceedings.” United States v. Carlile , 884 F.3d 554, 556

– 57 (5th Cir. 2018) (quoting United States v. Prieto , 801 F.3d 547, 549

– 50 (5th Cir. 2015))

.

3 Gracia

- Cantu raised two arguments as to § 16(b): (1) that § 16(b) is unconstitutionally vague; and (2) that Gracia

- Cantu’s Texas assault conviction does not present a substantial risk of using physical force. We determine that the first argument is dispositive of the appeal and do not reach the second.

4 We do not address the government’s untimely argument, raised for the first time in two sentences in its April 25, 2018 28 ( j ) letter, that Dimaya is not dispositive because Gracia

- Cantu’s § 16(b) challenge is essentially a challen ge to the G uidelines, which are not subject to a void for vagueness challenge under Beckles v. United States , 137 S. Ct. 886 (2017). See United States v. Scroggins , 599 F .3d 433, 446 (5th Cir. 2010) (“A party that asserts an argument on appeal, but fails to adequately brief it, is deemed to have waived it.” (quoting Knatt v. Hosp

. Serv. Dist. No. 1 , 327 F. App’x 472, 483 (5th Cir. 2009)) ). Case: 15-40227 Document: 00514455367 Page: 5 Date Filed: 05/02/2018No. 15

- 40227

6 Dimaya establishes that it is error to use § 16(b) to b ring an offense within the ambit of the term “crime of violence.” At the time of sentencing, Supreme Court precedent foreclosed this objection , and after an intervening change in the law, that argument was again foreclosed by this court during the pendenc y of Gracia

- Cantu’ s appeal. However, “the error became clear in light of a decision announced while this case was still on direct appeal.” United States v. Hornyak , 805 F.3d 196, 199 (5th Cir. 2015) (citing Henderson v. United States , 568 U.S. 266 , 269 ( 201 3 )). This error affected Gracia

Cantu’s substantial rights , as he received a 41

- month sentence that is 11 months above the G uideline s range that applies for Gracia

- Cantu’s criminal

history level if a conviction under Texas Penal Code section s 22.01(a)( 1) and (b)(2) is not a crime of violence under 1 8 U.S.C. § 16. See United States v. Reyes

- Ochoa , 861 F.3d 582, 589 (5th Cir. 2017) (“[A] sentence under an incorrect Guidelines range ‘can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.’” (quoting Molina

- Martinez v. United States , 136 S. Ct. 1338, 1345 (2016)) ). Determining that Gracia

- Cantu satisfies the first three prongs of plain

error review, we turn to whether prong four is satisfied. Grac ia

- Cantu argues that we should exercise our discretion on prong four because the district court did not indicate that it would have imposed an above

Guidelines sentence if it had considered the correct range. The government has not argued here that we sho uld not exercise our fourth

- prong discretion. 5 Gracia

- Cantu’s sentence was 11 months abo ve the top of his correct G uideline range

— a 36% increase. “We conclude ‘that the substantial

5 The government’s April 25, 2 018 28 ( j ) letter contends that the court must consider whether Gracia

- Cantu prevails under the fourth prong but does not contain any argument as to why Gracia

- Cantu does not prevail other than directing the court to approximately fifteen seconds of audio d uring oral argument. This is in sufficient to contest Gracia

- Cantu’ s fourth

- prong arguments. See Scroggins , 599 F.3d at 446. Case: 15-40227 Document: 00514455367 Page: 6 Date Filed: 05/02/2018No. 15

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7 disparity between the imposed sentence and the applicable Guidelines ran ge warrants the exercise of our discretion to correct the error.’” Reyes

- Ochoa , 861 F.3d at 589 (quoting United States v. Mudekunye , 646 F.3d 281, 291 (5th Cir. 2011)). Moreover, counseling in favor of exercising our discretion here is that the higher sen tence resulted from the application of a statute declared unconstitutionally void by the Supreme Court while the claim was on direct appeal. See United States v. Maldonado , 638 F. App’x 360, 363 (5th Cir. 2016) (exercising fourth

- prong discretion because requiring the appellant to serve additional prison time based on an unconstitutional statute “would cast significant doubt on the fairness of the criminal justice system” (quoting Hornyak , 805 F.3d at 199) ); Hornyak , 805 F.3d at 199 (stating t hat if the error resulting in a higher sentence is of a “constitutional magnitude,” it is a facto r that favors exercising fourth

- prong discretion); see also United States v. Torres , 856 F.3d 1095, 1100 (5th Cir. 2017) ( stating that the exercise of fourth

- p rong discretion is appropriate whe n there is a significant disparity in time to be served and the presence of an additional element that “raises a question as to the ‘ f airness of judicial proceedings ’” (quoting Puckett v. United States , 556 U.S. 129, 135 ( 2009) ). Here, under the totality of circumstances of this case , including that the government has briefed no argument as to why we should not exercise our discretion, the increased sentence resulted from applying an unconstitutionally vague statute, and t here was a substantial disparity between Guideline s ranges, we determine that we should exercise our discretion to correct the error

. IV. For the foregoing reasons, we VACATE Gracia

- Cantu’s sentence and REMAND for resentencing consistent with this opinio n. Case: 15-40227 Document: 00514455367 Page: 7 Date Filed: 05/02/2018