United States v. Gracia-Cantu, 040219 FED5, 15-40227

Docket Nº:15-40227
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE PRISCILIANO GRACIA-CANTU, Defendant-Appellant.
Judge Panel:Before KING, ELROD, and GRAVES, Circuit Judges.
Case Date:April 02, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

JOSE PRISCILIANO GRACIA-CANTU, Defendant-Appellant.

No. 15-40227

United States Court of Appeals, Fifth Circuit

April 2, 2019

Appeal from the United States District Court for the Southern District of Texas

Before KING, ELROD, and GRAVES, Circuit Judges.

PER CURIAM

We WITHDRAW our prior panel opinion and SUBSTITUTE this opinion. Jose Prisciliano Gracia-Cantu appeals the district court's determination that a conviction under Texas Penal Code §§ 22.01(a)(1) and (b)(2) for "Assault - Family Violence" qualifies as a crime of violence under 18 U.S.C. § 16, and is therefore an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(F) and U.S.S.G. § 2L1.2(b)(1)(C). Consistent with our recent en banc decision in United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc), we hold that a conviction under Texas Penal Code §§ 22.01(a)(1) and (b)(2) falls within the definition of a crime of violence under 18 U.S.C. § 16(a). We therefore AFFIRM Gracia-Cantu's sentence.

Section 16(a) defines a "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a). We recently explained en banc that this definition does not include a "directness-of-force requirement." Reyes-Contreras, 910 F.3d at 183. Even indirect applications of force will do. Instead, all that this definition requires is that the statute of prior conviction criminalize only conduct that: (1) is committed intentionally, knowingly, or recklessly; and (2) "employs a force capable of causing physical pain or injury"; (3) against the person of another. Id. at 183, 185; see also United States v. De La Rosa, No. 17-10487, 2019 WL 177958, at *3 (5th Cir. Jan. 11, 2019) (unpublished).

Texas "Assault - Family Violence" fits the bill. First, the statute requires that the offense be committed "intentionally, knowingly, or recklessly." Tex. Penal Code § 22.01(a)(1). Second, the statute requires that the defendant "cause[] bodily injury," id., which is defined as "physical pain, illness, or any impairment of...

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