### 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 Before KING, ELROD, and GRAVES , Circuit Judges . PER CURIAM: We WITHDRAW our prior panel opinion and SUBSTITUTE this opinion. Jose Prisciliano Gracia - Cantu appeals the district court’s determination that a conviction under Texas Penal Code §§ 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 o f 8 U.S.C. § 1101(a)(43)(F) and U.S.S.G. § 2L1.2(b)(1)(C). Consistent with our recent en banc decision in United States v. Reyes - Contreras , 910 F.3d 169 (5th Cir. 2018) (en banc), we hold that a conviction under Texas Penal Code §§ 22.01(a)(1) and (b)(2) falls within the definition of a crime of violence under 18 U.S.C. § 16(a). We therefore AFFIRM Gracia - Cantu’s sentence . United States Court of Appeals Fifth Circuit 

### FILED April 2, 2019 Lyle W. Cayce Clerk Case: 15-40227 Document: 00514899181 Page: 1 Date Filed: 04/02/2019No. 15 - 40227

2 Section 16(a) defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physica l force against the person or property of another.” 18 U.S.C. § 16(a). We recently explained en banc that this definition does not include a “directness - of - force requirement.” Reyes - Contreras , 910 F.3d at 183. Even indirect applications of force will do . Instead, all that this definition requires is that the statute of prior conviction criminalize only conduct that: (1) is committed intentionally, knowingly, or recklessly; and (2) “employ s a force capable of causing physical pain or injury”; (3) against the person of another. Id. at 183, 185; see also United States v. De La Rosa , No. 17 - 10487, 2019 WL 177958, at *3 (5th Cir. Jan. 11, 2019) (unpublished). Texas “Assault

– Family Violence” fits the bill. First, the statute requires that the offense be co mmitted “intentionally, knowingly, or recklessly.” Tex. Penal Code § 22.01(a)(1). Second, the statute requires that the defendant “cause[] bodily injury,” id. , which is defined as “physical pain, illness, or any impairment of physical condition , ” i d. § 1 .07(a)(8). Third, the statute requires that the injury be caused to “ another,” id. § 22.01(a)(2)

— specifically, against a family member, as defined by certain provisions of the Texas Family Code, id. § 22.01(b)(2). This statute th erefore meets the definit ion of a “crime of violence” under § 16(a). See also United States v. Gomez , 91 7 F.3d 332, 334 (5th Cir. 2019) (holding that aggravated assault

— which shares the same predicate offense, simple assault, as the statute in the instant case

— is a “crime of viol ence ” under § 16(a)); De La Rosa , 2019 WL 177958 , at *3 (holding that assault against a peace officer, which also shares simple assault as a predicate offense, is a “crime of violence” under § 16(a)). Post - Reyes - Contreras , Gracia - Cantu has only two remaining arguments. We reject both. First, he asserts that the degree of force required by the Texas statute
— reaching to “any impairment of physical condition,” Tex. Penal Code Case: 15-40227 Document: 00514899181 Page: 2 Date Filed: 04/02/2019No. 15 - 40227

3 § 1.07(a)(8), even minor injuries

— is too minimal to constitute a crime of vi olence. See Curtis Johnson v. United States , 559 U.S. 133 , 140 (2010) (“ [ I ] n the context of a statutory definition of ‘ violent felony,’ the phrase ‘physical force’ means violent force

— that is, force capable of causing physical pain or injury to another pe rson.”) (emphasis in original) . Bu t Gracia - Cantu must show more than a “theoretical possibility” that the statute could be enforced and applied this way; he must show a “realistic probability . . . that the State would apply its statute to conduct that fa lls outside the [use - of - force clause ] .” Reyes Contreras , 910 F.3d at 184 & n.35. In the absence of “supporting state case law, interpreting a state statute’s text alone is simply not enough to establish the necessary ‘realistic probability.’” United Sta tes v. Castillo - Rivera , 853 F.3d 218, 223 (5th Cir. 2017) (quoting Gonzales v. Duenas - Alvarez , 549 U.S. 183, 193 (2007)) . Gracia - Cantu fails to provide that case law. T h e state - court cases he relies on

— two finding bodily injury when d efendants knowingly transmitted HIV 1 and one finding bodily injury when a defendant knowingly injected bleach through an IV into a victim’s bloodstream 2

— involve force “capable of causing physical pain or injury ” to the degree contemplated by Curtis Johnson . Reyes - Contreras , 910 F.3d at 185. These instruments

— HIV and intravenous bleach

— are no different from the “deadly instruments” in Mr. Reyes Contreras’s state - court case law: a gun, poison - laced orange juice, and a plastic bag . Id. Just as in Reyes - Contreras , the state - court case law that Gracia Cantu relies on involves the “knowing[ ] employ[ment of] deadly instruments

1 Billingsley v. State , No. 11 - 13 - 00052 - CR, 2015 WL 1004364, at *1

– 2 (Tex. App.

– Eastland Feb. 27, 2015, pet. ref’d) (unpublished); Padieu v. State , 05 - 09 - 00796 - CR, 2010 WL 5395656, at *1 (Tex. App.

— Dallas Dec. 30, 2010, pet. ref’d) (unpublished) . 2 Saenz v. State , 479 S.W.3d 939, 949

– 50 (Tex. App.

– San Antonio 20 15, pet. ref’d)). Case: 15-40227 Document: 00514899181 Page: 3 Date Filed: 04/02/2019No. 15 - 40227

4 . . . with the understanding that those instruments were substantially likely to cause physical pain, injury, or . . . death.” 3 Id. Gracia - Cantu’s seco nd remaining argument post - Reyes - Contreras is that applying Reyes - Contreras “retroactively” to his sentence would violate the Constitution’s protection against “unforeseeable judicial enlargement[s] of . . . criminal statute[s].” Bouie v. City of Columbia , 378 U.S. 347, 353 (1964). Gracia - Cantu, however, is not the first to raise this defense against the application of Reyes - Contreras , and ou r court has already rejected it. Gome z , 919 F.3d at 33 (“ Reyes - Contreras did not make previously innocent activiti es criminal. It merely reconciled our circuit precedents with the Supreme Court’s decision in Castleman .”) . * * * Reyes - Contreras applies to Gracia - Cantu’s sentence and renders his prior conviction for Texas “Assault

– Family Violence” a “crime of violence” under 18 U.S.C. § 16(a). Accordingly, we AFFIRM the district court’s sentence.

3 Gracia - Cantu also suggests that the Texas statute criminalizes assault through the use of force that is non - physical altogether. For this cla im, he points to an indictment of a defendant who sent a tweet with an animation of strobe lig hts designed to trigger the recipient’s epileptic seizures, which they did. See Indictment, State v. Rivello , Case No. F 1700215 - M (Crim. Dist. Ct. No. 5, Dallas Co., Tex. Mar. 20, 2017). Even if an indictment alone can show a realistic probability that a state criminal statute will be interpreted a certain way

— an issue we need not address today

— this argument would fall short. In United States v. Castleman , the Supreme Court explained that “the knowing or intentional causation of bodily injury necessaril y involves the use of physical force.” 572 U.S. 157, 169 (2014); see also Reyes - Contreras , 910 F.3d at 182 (“We hold that, as relevant here, Castleman is not limited to cases of domestic violence . . . ”) . Seizures are a form of bodily injury. Knowingly or intentionally causing them, therefore, necessarily involves the use of physical force. Case: 15-40227 Document: 00514899181 Page: 4 Date Filed: 04/02/2019