IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-51139

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SAUL HERNANDEZ-RAMIREZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:14-CR-1534-1

Before JONES, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Saul Hernandez-Ramirez was convicted of illegal 

reentry after a bench trial and sentenced to seven months of imprisonment and 

a one-year term of supervised release. The sole issue he raises on appeal is 

whether the district court erred by denying his motion to dismiss because his 

prior removal, which is an element of the illegal reentry offense, violated his 

due process rights. Specifically, he contends that the expedited removal 

 

* Pursuant to 5TH CIR. R. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 7, 2016

Lyle W. Cayce

Clerk

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No. 15-51139

2

procedure, which applies only where the individual has an aggravated felony 

conviction, should not have been used in his case because his Texas 

misdemeanor assault conviction was not for an aggravated felony.

We “review de novo the district court’s denial of [Hernandez-Ramirez’s] 

motion to dismiss the indictment as well as his underlying constitutional 

claims,” and “accept all factual findings made by the district court in 

connection with that ruling unless clearly erroneous.” United States v. 

Villanueva-Diaz, 634 F.3d 844, 848 (5th Cir. 2011). To prevail, HernandezRamirez must “establish that (1) the prior hearing was fundamentally unfair; 

(2) the hearing effectively eliminated [his] right . . . to challenge the hearing 

by means of judicial review of the order; and (3) the procedural deficiencies 

caused [him] actual prejudice.” Id. at 850 (internal quotation marks and 

citation omitted). Hernandez-Ramirez must also exhaust the administrative 

remedies set out in 8 U.S.C. § 1326(d)(1), Villanueva-Diaz, 634 F.3d at 849, 

which he has done, see Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187 (5th 

Cir. 2013).

Hernandez-Ramirez has not demonstrated that his prior deportation 

was fundamentally unfair. He correctly points out that under current case 

law, a misdemeanor assault conviction under Texas Penal Code § 22.01(a)(1) 

is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), see United States 

v. Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir. 2006); however, at the time 

of Hernandez-Ramirez’s deportation in July 2003, our precedent indicated that 

a violation of § 22.01(a)(1) could be an aggravated felony. In United States v. 

Urias-Escobar, 281 F.3d 165, 166-68 (5th Cir. 2002), we affirmed the sentence 

of a defendant who was convicted of illegal reentry and received a 16-level 

enhancement under U.S.S.G. § 2L1.2 because the district court found his 

previous conviction for Texas misdemeanor assault with bodily injury was an 

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aggravated felony. And in United States v. Shelton, 325 F.3d 553, 555, 557

(5th Cir. 2003), we affirmed the conviction of a defendant for possession of a 

firearm following a conviction for a misdemeanor crime of violence, namely his 

Texas misdemeanor crime of domestic violence under § 22.01(a)(1). The 

defendant contended that his prior conviction was not a crime of domestic 

violence because § 22.01(a)(1) did not have the requisite force element. 

Shelton, 325 F.3d at 557. We disagreed, concluding that “because Shelton’s 

predicate offense of misdemeanor assault requires bodily injury it includes as 

an element the use of physical force.” Id. at 561.

Given the state of the law when Hernandez-Ramirez was deported in 

2003, he has not demonstrated that the use of the expedited removal process 

was fundamentally unfair.

AFFIRMED.

 Case: 15-51139 Document: 00513788685 Page: 3 Date Filed: 12/07/2016