by Jacob Barrett

OnremandfromtheU.S. SupremeCourt, the Court of Appeals for the Fifth Circuit held in light of Borden v.United States,141 S. Ct. 1817 (2021), Alan Victor Gomez Gomez’s conviction for aggravated assault in Texasdoes not qualify as an aggravated felony under 8 U.S.C. § 1326(b)(2).

In a drunken stupor, Gomez Gomez bludgeoned two people with a 2x4. He was charged with aggravated assault,which, under Texas law, requires either an intentional, knowing, or reckless mens rea. Tex. Penal Code §§22.0l(a)(l), 22.0l(a)(2). He pleaded guilty, served time, and was deported to Mexico.

He laterreturnedtotheU.S.illegally.Hewaschargedwithandpleadedguiltytoonecountofillegalreentry“subsequenttoaconvictionforcommissionofanaggravatedfelony,”inviolationof8U.S.C.§1326(a)and(b)(2).Hewassentencedto19months,aprisontermwellbelowthe22-yearstatutorymaximumunder§1326(b)(2)andalsowellbelowthe10-yearstatutorymaximumunder§1326(b)(l).

He appealed his conviction’s classification under §1326(b)(2), reentry with a prior “aggravated felony” conviction. The Fifth Circuit affirmed, holding that his prior conviction constituted an “aggravated felony” under §1326(b)(2). He then appealed to the Supreme Court, which vacated the judgment and remanded for further consideration in light of Borden. 

On remand before the Court, the parties now agree that Gomez Gomez’s prior aggravated assault conviction under Texas law doesn’t qualify as an “aggravated felony” under §1326(b)(2) because it’s not a “crime of violence” as defined by 18 U.S.C. § 16(a) under Borden. However, the Court noted that simply because the parties are in agreement on this issue of law, the Court does not defer to their conclusion and stated that it must review the question independently when evaluating “the district court’s characterization of a prior offense as an aggravated felony or as a crime of violence.” See United States v. Narez-Garcia, 819 F.3d 146 (5th Cir. 2016).

The Court concluded that the parties are correct. It stated that a conviction under §1326(b)(2) requires there to be a prior “aggravated felony” conviction, which includes “crimes of violence” that are defined in § 16(a). See 8 U.S.C. § 1101(a)(43)(F). Section 16(a) defines a “crime of violence” as “an offense that has as an element the use … of physical force against the person … of another.” In Borden, the Supreme Court held that an offense that requires the “use of force against the person of another” doesn’t include those offenses that include a mens rea of recklessness.  

Analyzing the Texas statute in question, the Court noted that it includes three indivisible mental states for conviction, one of them being recklessness. See § 22.01(a)(1). In light of Borden, Gomez Gomez’s conviction under § 22.0l(a)(l) doesn’t qualify as a “crime of violence” and is thus not an “aggravated felony” for purposes of § 1326(b)(2). See 8 U.S.C. § 1101(a)(43)(F). 

Consequently, as the parties agreed, his conviction should have been entered under §1326(b)(1), i.e., prior non-aggravated felony conviction, instead of §1326(b)(2). 

Accordingly, the Court remandedtothedistrictcourtforthelimitedpurposeofreformingitsjudgmenttoreflectGomezGomez’sconvictionandsentencingunder8U.S.C.§1326(b)(l). See:U.S.v.Gomez,23 F.4th 575 (5th Cir. 2022). 

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