Case: 16-41159      Document: 00514789648         Page: 1    Date Filed: 01/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                    No. 16-41159
                                                                            Fifth Circuit

                                                                          FILED
                                  Summary Calendar                  January 10, 2019
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


              Plaintiff - Appellee

v.

LUIS ALBERTO ESPARZA-CASILLAS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-287-1


     ON REMAND FROM THE UNITED STATES SUPREME COURT
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Luis Alberto Esparza-Casillas pleaded guilty to one count of illegal
reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(2) and was sentenced to 41
months imprisonment. On appeal, Esparza-Casillas argues that the district
court plainly erred in entering judgment against him under § 1326(b)(2). This



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-41159
subsection applies to aliens who unlawfully reenter the United States after
removal, and “whose removal was subsequent to a conviction for commission
of an aggravated felony.” 8 U.S.C. § 1326(b)(2). The definition of “aggravated
felony” includes a “crime of violence” for which the term of imprisonment is at
least one year. See 8 U.S.C. § 1101(a)(43)(F). The term “crime of violence” is
defined in 18 U.S.C. § 16.
      Esparza-Casillas argues that his prior Texas conviction for aggravated
assault is not an aggravated felony. We previously granted Esparza-Casillas’s
unopposed motion for summary affirmance on the grounds that his argument
was foreclosed by United States v. Gonzalez-Longoria, 

(5th Cir.
2016) (en banc). The Supreme Court vacated our judgment and remanded for
reconsideration in light of Sessions v. Dimaya, 

(2018). Dimaya
held that the definition of a crime of violence in 18 U.S.C. § 16(b) is
unconstitutionally vague. 

On remand, the parties dispute whether
Esparza-Casillas’s prior conviction nonetheless qualifies as a crime of violence
under 18 U.S.C. § 16(a).
      The parties agree that our review is for plain error because Esparza-
Casillas did not preserve this issue before the district court. We will find plain
error only if, among other factors, the district court made a “clear or obvious”
error. Rosales-Mireles v. United States, 

, 1904 (2018). “We have
explained that ‘if a defendant’s theory requires the extension of precedent, any
potential error could not have been plain.’” United States v. Urbina-Fuentes,

, 696 (5th Cir. 2018) (quoting United States v. Garcia-Rodriguez,

, 455 (5th Cir. 2005)). The caselaw on Texas aggravated assault is
not settled, and Esparza-Casillas has not shown that the district court




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                                       No. 16-41159
committed a clear or obvious error in this case. 1 See United States v. Perez-de
Leon, No. 15-40761, 

, at *4 (5th Cir. Nov. 20, 2018); United
States v. Guzman, 

, 348 (5th Cir. 2015). The judgment of
conviction is AFFIRMED.




       1      Our plain error analysis does not rest on this court’s recent en banc decision in
United States v. Reyes-Contreras, 

(5th Cir. 2018). We thus do not address
Esparza-Casillas’s alternative argument that applying Reyes-Contreras to his case would
violate due process.
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