IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10745

UNITED STATES OF AMERICA, 

 Plaintiff - Appellant

v.

ROBERT EARL MITCHELL, JR., 

 Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CR-322-1

Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.

PER CURIAM:*

Robert Mitchell pleaded guilty to unlawful possession of a firearm by a 

felon. The Presentence Report (“PSR”) concluded that Mitchell had been 

convicted of one crime of violence under U.S.S.G. § 2K2.1(a)(4)(A). The 

government objected, arguing that Mitchell’s felony conviction for domesticviolence assault should also be treated as a crime of violence. Despite 

sympathizing with the government’s position, the district court stated that it 

 

* 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

May 2, 2019

Lyle W. Cayce

Clerk

 Case: 17-10745 Document: 00514940804 Page: 1 Date Filed: 05/02/2019
No. 17-10745

2

was bound to overrule the objection by our (since overturned) precedent. The 

district court sentenced Mitchell using the PSR’s calculation, and the 

government appeals. 

The conviction at issue stemmed from a 2012 incident, for which Mitchell 

pleaded guilty to domestic assault. Under the Texas assault statute, Mitchell 

necessarily admitted to “intentionally, knowingly, or recklessly caus[ing] 

bodily injury to another.” TEX. PENAL CODE ANN. § 22.01(a)(1). Because he had 

previously been convicted of domestic assault, the offense was enhanced to a 

felony. Id. § 22.01(b)(2)(A).

The Sentencing Guidelines set a base offense level for unlawful 

possession in part by determining whether the defendant has previous 

convictions for a “crime of violence.” See U.S.S.G. § 2K2.1. “Crime of violence”

is defined as a felony offense that “has as an element the use, attempted use, 

or threatened use of physical force against the person of another” or is one of 

several enumerated crimes not at issue. U.S.S.G. § 4B1.2(a). 

The only issue on appeal is whether Mitchell’s enhanced domestic 

assault conviction has as an element the use of force. The Government argues 

that the requirement of causing bodily injury is sufficient to meet the “use of 

force” requirement. The Government also contends that the required level of 

force satisfies the degree of force required by the sentencing guidelines. 

Mitchell does not dispute the second point, arguing only that under this 

circuit’s precedent, causing bodily injury does not satisfy the “use of force” 

requirement.

At the time the parties completed their briefing, the applicable circuit 

precedent could be found in cases including United States v. VillegasHernandez, 468 F.3d 874, 879–80 (5th Cir. 2006), United States v. Rico-Mejia, 

859 F.3d 318, 322–23 (5th Cir. 2017), and United States v. Reyes-Contreras, 

882 F.3d 113, 122–23 (5th Cir. 2018). Each of these cases held that when 

 Case: 17-10745 Document: 00514940804 Page: 2 Date Filed: 05/02/2019
No. 17-10745

3

determining whether the elements of a crime include the use of force, there is 

a distinction between causing bodily injury and using force. However, all these 

cases have been expressly overruled by the en banc court in United States v. 

Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018). There, the court held that in 

“finding ‘use of force’ for purposes of identifying [crimes of violence], the . . . 

now-repudiated distinction between causing injury and using direct force” was 

abolished, as was the distinction between direct and indirect force. Id. at 187. 

That conclusion decides this appeal in the Government’s favor. See also United 

States v. Gracia-Cantu, 920 F.3d 252, 254 (5th Cir. 2019) (per curiam) (holding 

that Texas domestic assault meets the definition of a crime of violence).

We reverse and remand for resentencing.

 Case: 17-10745 Document: 00514940804 Page: 3 Date Filed: 05/02/2019