United States v. Gomez Gomez, 23 F.4th 575

Gomez Gomez assaulted two people with a 2x4 and pleaded guilty to aggravated assault under Texas Penal Code § 22.01(a)(1), which lists alternative mens rea: intentional, knowing, or reckless.
He served his sentence, was deported to Mexico, then returned to the U.S. illegally and pleaded guilty to illegal reentry under 8 U.S.C. § 1326(a) and (b)(2) — the subsection that applies if the defendant has a prior "aggravated felony."
The Fifth Circuit initially affirmed that his Texas aggravated-assault conviction qualified as an "aggravated felony" under § 1326(b)(2); the Supreme Court vacated and remanded in light of Borden v. United States.
After Borden, the parties agreed that Texas § 22.01(a)(1) does not qualify as a "crime of violence" under 18 U.S.C. § 16(a) because it criminalizes reckless conduct; the panel reviewed that legal question de novo and agreed.
Because the predicate offense is not a "crime of violence," it is not an "aggravated felony" for § 1326(b)(2) purposes; the conviction should therefore be treated under § 1326(b)(1) (non‑aggravated felony).
The court remanded to the district court to reform the judgment to reflect conviction and sentencing under § 1326(b)(1); no resentencing was required because the original 19‑month sentence was below the § 1326(b)(1) statutory maximum.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gomez Gomez’s Texas aggravated‑assault conviction is an "aggravated felony" under 8 U.S.C. § 1326(b)(2) by qualifying as a "crime of violence" under 18 U.S.C. § 16(a)	The government previously argued the conviction qualified as an aggravated felony	Gomez argued (and the parties now agree) that Borden forecloses treating offenses with reckless mens rea as "use of physical force" crimes, so it does not qualify	Court held it is not an "aggravated felony" because § 22.01(a)(1) is indivisible and includes recklessness, and Borden excludes reckless offenses from § 16(a) crimes of violence
Appropriate remedy: reform judgment on appeal or remand to district court; need for resentencing	Parties conceded the legal classification and sought reformation/remand to correct the statutory subsection	Parties agreed reclassification to § 1326(b)(1) was appropriate; court remanded to district court to reform the judgment and found resentencing unnecessary (original sentence below § 1326(b)(1) maximum)

Borden v. United States, 141 S. Ct. 1817 (2021) (Supreme Court holding that offenses with a mens rea of recklessness do not qualify as crimes involving the "use of physical force" under § 16(a))
United States v. Gomez Gomez, 917 F.3d 332 (5th Cir. 2019) (Fifth Circuit's earlier decision affirming classification as an aggravated felony)
Gomez‑Perez v. Lynch, 829 F.3d 323 (5th Cir. 2016) (holding Texas § 22.01(a) mental‑state alternatives are indivisible)
United States v. Narez‑Garcia, 819 F.3d 146 (5th Cir. 2016) (standard of de novo review for characterization of prior offenses)
United States v. Trujillo, 4 F.4th 287 (5th Cir. 2021) (explaining that resentencing is unnecessary where the record shows the sentence was not influenced by an incorrect statutory maximum)