908 F.3d 981
5th Cir.2018Background
- Valle-Ramirez, an alien previously deported in May 2013, pled guilty to being unlawfully present in the U.S. in violation of 8 U.S.C. § 1326(a) and (b). The district court sentenced him and listed his conviction under § 1326(b)(2).
- The PSR applied a 16-level U.S.S.G. § 2L1.2(b)(1)(A) enhancement based on a prior Georgia aggravated assault felony, treating it as a crime of violence; Valle-Ramirez objected to the enhancement (but not initially to § 1326(b)(2)).
- On appeal Valle-Ramirez argued the Georgia conviction is not a crime of violence under 18 U.S.C. § 16(a) (no element of use of force) and challenged § 16(b) as vague; the panel originally relied on Torres-Jaime and Gonzalez-Longoria to affirm.
- The Supreme Court vacated and remanded in light of Sessions v. Dimaya, which held § 16(b) unconstitutionally vague, so only § 16(a)’s use-of-force element remained applicable.
- On remand Valle-Ramirez sought to have his judgment reflect conviction under § 1326(b)(1) (no aggravated-felony enhancement) rather than § 1326(b)(2); the court considered whether Georgia aggravated assault has as an element the use, attempted use, or threatened use of physical force.
- The court held Georgia aggravated assault (as narrowed by state records to conduct under § 16-5-21(a)(2) and § 16-5-20(a)(2)) satisfies § 16(a)’s use-of-force element: the statute requires volitional conduct that places a victim in reasonable apprehension of immediate violent injury and involves use/threatened use of force.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior Georgia aggravated assault qualifies as an aggravated felony under 8 U.S.C. § 1326(b)(2) (via 18 U.S.C. § 16) | Valle-Ramirez: Georgia statute lacks an element of "use, attempted use, or threatened use of physical force" and § 16(b) is vague | Government: The Georgia offense (as narrowed) has an element of use/threatened use of force; § 16(a) applies | Court: Affirmed — Georgia aggravated assault (as charged) satisfies § 16(a) and thus qualifies as an aggravated felony under § 1326(b)(2) |
Key Cases Cited
- United States v. Torres-Jaime, 821 F.3d 577 (5th Cir. 2016) (held Georgia aggravated assault qualifies as a crime of violence for guideline purposes)
- United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (addressed constitutionality of § 16(b) prior to Dimaya)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (held § 16(b) residual clause unconstitutionally vague)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (held "use" of force covers reckless mens rea)
- United States v. Howell, 838 F.3d 489 (5th Cir. 2016) (applied Voisine to sentencing "use of force" analysis)
- United States v. Mendez-Henriquez, 847 F.3d 214 (5th Cir. 2017) (explained focus on volitional conduct post-Voisine)