United States Court of Appeals 

for the Fifth Circuit 

No. 20-40068 

United States of America, 

Plaintiff—Appellee, 

versus

Ignacio Arreola-Mendoza, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 7:19-CR-1751-1 

ON REMAND FROM 

THE SUPREME COURT OF THE UNITED STATES 

 

Before King, Smith, and Wilson, Circuit Judges.

Per Curiam:*

IT IS ORDERED that the appellant’s petition for panel rehearing 

is DENIED. Our prior panel opinion, United States v. Arreola-Mendoza, No. 

*

 Pursuant to 5th 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opinion should not be published and is not precedent except under the limited 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 5th Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

November 24, 2021 

Lyle W. Cayce 

Clerk 

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20-40068, slip op. (5th Cir. Oct. 27, 2021), is WITHDRAWN and the 

following opinion is SUBSTITUTED therefor. 

Ignacio Arreola-Mendoza appealed his 37-month sentence for illegal 

reentry following removal. He asserted that the district court improperly 

classified his prior Texas conviction for aggravated assault as an “aggravated 

felony.” This classification led to a potential maximum sentence of twenty 

years. Arreola-Mendoza argued that the district court improperly relied on 

this statutory maximum in sentencing him to 37 months of imprisonment. 

The Government moved for summary affirmance, contending that 

Arreola-Mendoza’s argument was foreclosed by United States v. ReyesContreras, 910 F.3d 169 (5th Cir. 2018) (en banc), and United States v. GraciaCantu, 920 F.3d 252 (5th Cir.), cert. denied, 140 S. Ct. 157 (2019). We agreed, 

granted the Government’s motion, and summarily affirmed. United States v. 

Arreola-Mendoza, 815 Fed. App’x 807, 808 (5th Cir. 2020), cert. granted, 

judgment vacated, 141 S. Ct. 2783 (2021). Arreola-Mendoza petitioned the 

Supreme Court for a writ of certiorari, which the Court granted. ArreolaMendoza v. United States, 141 S. Ct. 2783 (2021) (mem.). The Court vacated 

our judgment and remanded for further consideration in the light of Borden 

v. United States, 141 S. Ct. 1817 (2021). 

Because Arreola-Mendoza did not preserve his challenge by objecting 

to his sentence in the district court, plain-error review applies. Puckett v. 

United States, 556 U.S. 129, 135-36 (2009). This standard requires ArreolaMendoza to show: (1) “an error or defect . . . that has not been intentionally 

relinquished or abandoned,” (2) that is “clear or obvious,” and (3) that 

“affected the appellant’s substantial rights . . . .” Id. at 135 (quoting United 

States v. Olano, 507 U.S. 725, 732–36 (1993)). “[I]f the above three prongs 

are satisfied, the court of appeals has the discretion to remedy the error—

discretion which ought to be exercised only if the error ‘“seriously affect[s] 

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the fairness, integrity or public reputation of judicial proceedings.”’” Id. 

(quoting Olano, 507 U.S. at 736; United States v. Atkinson, 297 U.S. 157, 160 

(1936)). Because Arreola-Mendoza fails to demonstrate that the district 

court plainly erred in characterizing his prior Texas conviction for aggravated 

assault as an “aggravated felony,” leading to an enhanced potential 

maximum sentence under 8 U.S.C. § 1326(b)(2), we affirm ArreolaMendoza’s sentence. 

Arreola-Mendoza contends that because he could have been 

convicted for aggravated assault in Texas with only a mens rea of 

recklessness, Borden dictates a conclusion that the district court erred by 

classifying his aggravated assault conviction as an aggravated felony and then 

enhancing his sentence for illegal reentry based on that classification. 

Arreola-Mendoza correctly notes that the plurality in Borden held that a 

criminal offense cannot be defined “as a ‘violent felony’ if it requires only a 

mens rea of recklessness[.]” Borden, 141 S. Ct. at 1821. And while the Borden 

Court was faced only with a challenge to the definition of a “violent felony” 

under the Armed Career Criminal Act, 18 U.S.C. § 924(e), it extended its 

holding to the definition of a “crime of violence” under 18 U.S.C. § 16(a) 

because the two definitional clauses are nearly identical. Id. at 1824-25. 

Section 16(a) in turn applies to this case because under 8 U.S.C. 

§ 1101(a)(43)(F), “aggravated felony” is defined as a “crime of violence.” 

But even if his articulation of Borden’s holding is accurate, Arreola-Mendoza 

has failed to demonstrate record support for his argument. 

Plain-error review requires, inter alia, that the district court’s error be 

“clear or obvious[.]” Puckett, 556 U.S. at 135 (citing Olano, 507 U.S. at 734). 

The record shows that Arreola-Mendoza previously was convicted, via a 

guilty plea, under Tex. Penal Code § 22.02(a)(2), which required a 

finding that Arreola-Mendoza both (1) committed assault as defined in Tex. 

Penal Code § 22.01 and (2) used or exhibited “a deadly weapon during 

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the commission of the assault.” Tex. Penal Code § 22.02(a)(2). 

Assault is defined in § 22.01 as 

(1) intentionally, knowingly, or recklessly caus[ing] bodily 

injury to another, including the person’s spouse; 

(2) intentionally or knowingly threaten[ing] another with 

imminent bodily injury, including the person’s spouse; or 

(3) intentionally or knowingly caus[ing] physical contact with 

another when the person knows or should reasonably believe 

that the other will regard the contact as offensive or 

provocative. 

Id. § 22.01(a). However, the record is devoid of any evidence that ArreolaMendoza was convicted under the “reckless” standard contained in 

§ 22.01(a)(1). In fact, the only evidence that has any bearing on the nature of 

his conviction is the presentence report. While that could not form the sole 

basis of the district court’s elements analysis, see United States v. CondeCastandea, 753 F.3d 172, 177 (5th Cir. 2014), as the only evidence in the 

record on this point it is enlightening. The presentence report’s description 

of Arreola-Mendoza’s conduct prompting his guilty plea states, in relevant 

part: “[T]he defendant walk[ed] to the back bedroom and [his son] heard 

him say, in the Spanish language, ‘what if I took your life?’ The defendant 

then came out of the bedroom holding a large pair of gardening shears and 

swung towards his son’s torso. He missed[.]” This indicates that ArreolaMendoza did not cause bodily injury to his son but rather “threaten[ed his 

son] with imminent bodily injury.” Id. § 22.01(a)(2); cf. Smith v. State, 587 

S.W.3d 413, 420 (Tex. App. 2019) (“Bodily injury ‘encompasses even 

relatively minor physical contact if it constitutes more than offensive 

touching.’”) (quoting Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 

2009)). 

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If the district court erred at all in its assessment of the record, ArreolaMendoza has pointed us to nothing that demonstrates “clear or obvious” 

error.1

 Puckett, 556 U.S. at 135 (citing Olano, 507 U.S. at 734). His appeal 

thus lacks merit. 

Because he did not object to his sentence at the district court level, 

Arreola-Mendoza can only obtain relief if he can show the district court 

plainly erred. Given the record before us, he fails to make such a showing. 

Accordingly, the district court’s judgment is 

AFFIRMED. 

1

 It is also unclear whether Arreola-Mendoza’s substantial rights were affected, 

even assuming a “clear or obvious” error during sentencing, see Puckett, 556 U.S. at 135 

(citing Olano, 507 U.S. at 734). Arreola-Mendoza asserts the district court improperly 

relied on a potential twenty-year statutory maximum sentence in computing his 37-month 

sentence, but our examination of the record fails to demonstrate anything more than 

passing references to that potential maximum term by the district judge. If anything, the 

transcript of the sentencing hearing appears to demonstrate a thorough Guidelines-based 

approach to sentencing Arreola-Mendoza. 

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