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 sections 22.01(a)(1) 

and (b)(2) for “Assault – Family Violence” 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). Consistent with our 

 

* Concurring 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should not be published and is not precedent except under the limited circumstances set 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

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binding precedent, we determine that a conviction under Texas Penal Code 

sections 22.01(a)(1) and (b)(2) does not fall within the definition of a crime of 

violence under 18 U.S.C. § 16(a). In light of the Supreme Court’s holding that 

18 U.S.C. § 16(b) is unconstitutionally vague, we determine that the sentence 

cannot be supported by § 16(b) either. Therefore, we VACATE GraciaCantu’s sentence and REMAND for resentencing. 

I.

Gracia-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). Gracia-Cantu had a prior Texas 

felony conviction for “Assault – Family Violence” under Texas Penal Code 

sections 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 Gracia-Cantu had been previously convicted of an 

aggravated felony prior to deportation. Gracia-Cantu filed an objection to the 

pre-sentence report, arguing that 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 use 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 an 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 

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“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.” GraciaCantu timely appealed his 41-month sentence.

II.

We first address whether Gracia-Cantu’s prior conviction qualifies as a 

crime of violence under 18 U.S.C. § 16(a). When, as here, a defendant 

properly preserves an objection to the classification of a prior offense as an 

aggravated 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 

element the use, attempted use, or threatened use of physical force against 

the person or property of another.” 18 U.S.C. § 16(a). During the pendency of 

this appeal, multiple Supreme Court and Fifth Circuit decisions interpreting 

the term “crime of violence” in different statutory and Guidelines contexts 

have shifted the legal landscape. The government argues that the court’s 

precedent that a conviction under Texas Penal Code section 22.01(a)(1) is not 

a crime of violence for § 16(a) purposes has been abrogated 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 under 

section 22.01(a)(1), and the assault offense does not fit subsection 16(a)’s 

definition for crime of violence”); United States v. Vargas-Duran, 356 F.3d 

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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 panel 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.2d 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, 322–23 (5th Cir. 

2017). We again confirmed that Castleman did not overrule our precedent in 

United States v. Reyes-Contreras, 882 F.3d 113, 123 (5th Cir. 2018) (“A postCastleman panel, in United States v. Rico-Mejia . . . , has already held that 

Castleman does not abrogate our decisions on the use 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 

Rico-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. 

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III.

We next address whether Gracia-Cantu’s conviction qualifies as a crime 

of violence under 18 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 that § 16(b) is void for vagueness and 

that review is for plain error.4 Puzzlingly though, the government utterly 

fails to brief 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 fairness, 

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 challenge to the Guidelines, 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))). 

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Dimaya establishes that it is error to use § 16(b) to bring 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 pendency 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 (2013)). This error affected GraciaCantu’s substantial rights, as he received a 41-month sentence that is 11 

months above the Guidelines range that applies for Gracia-Cantu’s criminalhistory level if a conviction under Texas Penal Code sections 22.01(a)(1) and 

(b)(2) is not a crime of violence under 18 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 plainerror review, we turn to whether prong four is satisfied. Gracia-Cantu 

argues that we should exercise our discretion on prong four because the 

district court did not indicate that it would have imposed an aboveGuidelines sentence if it had considered the correct range. The government 

has not argued here that we should not exercise our fourth-prong discretion.5 

Gracia-Cantu’s sentence was 11 months above the top of his correct 

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

 

5 The government’s April 25, 2018 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 during oral argument. This is insufficient to contest Gracia-Cantu’s 

fourth-prong arguments. See Scroggins, 599 F.3d at 446.

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disparity between the imposed sentence and the applicable Guidelines range 

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 sentence 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 that if the 

error resulting in a higher sentence is of a “constitutional magnitude,” it is a 

factor 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-prong discretion is appropriate when there is a significant disparity in 

time to be served and the presence of an additional element that “raises a 

question as to the ‘fairness 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 there was a substantial 

disparity between Guidelines 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 opinion. 

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