United States v. Alan Gomez Gomez
917 F.3d 332
| 5th Cir. | 2019Background
- Defendant Alan Victor Gomez Gomez pled guilty to illegally reentering the United States after deportation.
- The district court enhanced his sentence under 8 U.S.C. § 1326(b)(2), treating a prior Texas aggravated assault conviction as an "aggravated felony" because it was a "crime of violence."
- Central legal question: whether Tex. Penal Code § 22.02(a)(1) aggravated assault qualifies as a "crime of violence" under 18 U.S.C. § 16(a), given that it can be committed by indirect as well as direct uses of force.
- Gomez argued the offense is not a § 16(a) crime of violence because Texas law permits indirect uses of force, and prior Fifth Circuit precedent had distinguished direct from indirect force.
- The Fifth Circuit recently issued an en banc decision in United States v. Reyes-Contreras overruling prior circuit precedent and holding that § 16(a) incorporates the common-law (including indirect force) understanding of "use of force."
- Gomez contended Reyes-Contreras should not apply retroactively to him; the court rejected Ex Post Facto and Due Process challenges to applying the en banc decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Texas aggravated assault is a "crime of violence" under 18 U.S.C. § 16(a) | Aggravated assault is not a § 16(a) crime because it can be committed via indirect force | Prior conviction qualifies as a § 16(a) crime because § 16(a) includes indirect force per common law | Court held aggravated assault is a crime of violence under § 16(a) because indirect force counts |
| Whether the en banc decision (Reyes-Contreras) should apply to Gomez's sentence | Reyes-Contreras is a change in law and should not be applied retroactively (Ex Post Facto/Due Process) | Reyes-Contreras corrects circuit law to align with Supreme Court and other circuits and may be applied | Court rejected Ex Post Facto and Due Process challenges and applied Reyes-Contreras |
Key Cases Cited
- United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc) (overruled prior Fifth Circuit precedent and held § 16(a) includes indirect force)
- United States v. Castleman, 572 U.S. 157 (2014) (interpreting "force" in § 16 to include common-law force and indirect applications)
- Rogers v. Tennessee, 532 U.S. 451 (2001) (Ex Post Facto Clause does not apply to judicial decisions)
- Bouie v. City of Columbia, 378 U.S. 347 (1964) (due process bars retrospective application of an unforeseeable judicial expansion of criminal liability)
- United States v. Martinez, 496 F.3d 387 (5th Cir. 2007) (retroactive application of a decision resolving a circuit split to sentencing did not violate Bouie)
- United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006) (previously held Texas simple assault did not require use of force; overruled in part by Reyes-Contreras)