United States v. Jose Gracia-Cantu, 920 F.3d 252

Defendant Jose Prisciliano Gracia-Cantu appealed the district court’s determination that his Texas conviction for "Assault – Family Violence" (Tex. Penal Code §§ 22.01(a)(1), 22.01(b)(2)) is a crime of violence under 18 U.S.C. § 16 and thus an aggravated felony for immigration and sentencing consequences.
The Fifth Circuit, sitting per curiam, withdrew a prior panel opinion and revisited the case in light of the court’s en banc decision in United States v. Reyes-Contreras.
Section 16(a) defines a crime of violence as an offense having as an element the use, attempted use, or threatened use of physical force against the person or property of another.
The Texas statute requires intentional, knowing, or reckless conduct and the causation of "bodily injury," defined to include physical pain or impairment, against another person (specifically a family member).
Gracia-Cantu argued (1) the statute’s bodily-injury definition covers minimal/non-violent harms and thus falls outside § 16(a)’s physical-force requirement, and (2) applying Reyes-Contreras to his case retroactively violates Bouie’s rule against unforeseeable judicial enlargement of criminal statutes.
The court applied Reyes-Contreras and related precedent, rejected both arguments, and affirmed the sentence.

Issue	Gracia-Cantu's Argument	Government's Argument	Held
Whether conviction under Tex. Penal Code §§ 22.01(a)(1) & (b)(2) is a "crime of violence" under 18 U.S.C. § 16(a)	The statute allows conviction for minimal harms ("any impairment of physical condition") that do not require "violent force" as defined in Curtis Johnson	Under Reyes-Contreras, § 16(a) requires intentional/reckless conduct that employs force capable of causing physical pain or injury; the Texas statute requires such conduct and bodily injury to another	Affirmed: the Texas family-violence assault statute qualifies as a § 16(a) crime of violence
Whether applying Reyes-Contreras to his sentence violates Bouie (unforeseeable judicial enlargement)	Retroactive application of Reyes-Contreras would criminalize conduct that was not clearly criminal before, violating fair notice under Bouie	Reyes-Contreras reconciled circuit precedent with Supreme Court precedent (Castleman) and did not create new criminal liability; prior decisions foreclosed Bouie-based relief	Rejected: Bouie challenge fails; Reyes-Contreras properly applies

United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc) (interpreting § 16(a) to require intentional/reckless conduct that employs force capable of causing physical pain or injury and rejecting a directness-of-force requirement)
United States v. Gomez, 917 F.3d 332 (5th Cir. 2019) (holding aggravated assault qualifies as a § 16(a) crime of violence and rejecting Bouie challenge)
United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (explaining that demonstrating a realistic probability a state will apply a statute in a nonviolent way requires supporting state case law)
Castleman v. United States, 572 U.S. 157 (2014) (holding that knowingly causing bodily injury necessarily involves the use of physical force)
Curtis Johnson v. United States, 559 U.S. 133 (2010) (construing "physical force" in the Armed Career Criminal Act context as "violent force")
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (requiring a realistic probability, not mere theoretical possibility, to show a state statute could be applied to noncategorical conduct)
Bouie v. City of Columbia, 378 U.S. 347 (1964) (prohibiting unforeseeable judicial enlargement of criminal statutes under the Due Process Clause)