USA v. Hector Vasquez-Segoviano
UNPUBLISHED OPINION FILED. [16-40618 Affirmed] Judge: EHJ, Judge: JLW, Judge: EBC. Mandate pull date is 07/26/2017 for Appellant Hector Eduardo Vasquez-Segoviano [16-40618]
Date Filed: 07/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
July 5, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
HECTOR EDUARDO VASQUEZ-SEGOVIANO,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:15-CR-992-1
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
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Date Filed: 07/05/2017
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. CastanedaLozoya, 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
Guillen-Alvarez remains valid after Mathis v. United
States, 136 S. Ct. 2243 (2016). United States v. Shepherd, 848 F.3d 425, 42728 (5th Cir. 2017); United States v. Villasenor-Ortiz, ___ F. App’x ___, No. 1610366, 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
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).
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