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United States v. Hector Vasquez-Segoviano
692 F. App'x 188
| 5th Cir. | 2017
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*1 Before JONES, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM: [*]

Defendant-Appellant Hector Eduardo Vasquez-Segoviano appeals the 77-month sentence he received after he pleaded guilty to illegal reentry. He complains that the district court plainly erred when it deemed his prior Texas conviction for aggravated assault with a deadly weapon, in violation of Texas Penal Code § 22.02(a)(2), a crime of violence and applied U.S.S.G. § 2L1.2 (2015) to increase his offense level. He contends that for the Texas offense of *2 Case: 16-40618 Document: 00514059962 Page: 2 Date Filed: 07/05/2017

No. 16-40618

aggravated assault to qualify as a crime of violence under § 2L1.2, that offense must match the generic definition, without reference to judicial records. Vasquez-Segoviano cites to the definition of a crime of violence at 18 U.S.C. § 16(b), which, he contends, includes physical force as an element, and that physical force implies the active employment of force. Citing Johnson v. United States , 135 S. Ct. 2551 (2015), he argues that the crime of violence definition in § 16(b) is unconstitutional and precludes the 16-level increase in his case.

Vasquez-Segoviano did not object to the sentence enhancement in the district court, so our review is for plain error. See United States v. Castaneda- Lozoya , 812 F.3d 457, 459 (5th Cir. 2016). In United States v. Guillen-Alvarez , 489 F.3d 197, 199-201 (5th Cir. 2007), we held that a conviction for aggravated assault in violation of Texas Penal Code § 22.02 qualifies as the enumerated offense of aggravated assault and thus is a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). Guillen-Alvarez remains valid after Mathis v. United States , 136 S. Ct. 2243 (2016). United States v. Shepherd , 848 F.3d 425, 427- 28 (5th Cir. 2017); United States v. Villasenor-Ortiz , ___ F. App’x ___, No. 16- 10366, 2017 WL 113917 (5th Cir. Jan. 11, 2017), petition for cert. filed (May 31, 2017) (No. 16-9422). We are bound by our own precedent unless it should be altered by the Supreme Court. Wicker v. McCotter , 798 F.2d 155, 157-58 (5th Cir. 1986).

Vasquez-Segoviano’s reliance on Johnson is also unavailing as Johnson did not involve crime-of-violence enhancements under § 2L1.2. See United States v. Perez-Belmares , 670 F. App’x 330, 331 & n.3 (5th Cir. 2016); see also United States v. Gonzalez-Longoria , 831 F.3d 670, 675-77 (5th Cir. 2016) (en banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259). He thus has not met his burden of showing plain error. See Puckett v. United States , 556 U.S. 129, 135 (2009).

AFFIRMED.

2

[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

Case Details

Case Name: United States v. Hector Vasquez-Segoviano
Court Name: Court of Appeals for the Fifth Circuit
Date Published: Jul 5, 2017
Citation: 692 F. App'x 188
Docket Number: 16-40618 Summary Calendar
Court Abbreviation: 5th Cir.
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