Filed: Apr. 10, 2019
Latest Update: Mar. 03, 2020
Summary: Case: 16-40149 Document: 00514910055 Page: 1 Date Filed: 04/10/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-40149 FILED April 10, 2019 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DANIEL RIVERA-HERNANDEZ, Defendant – Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 2:15-CR-785-1 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Summary: Case: 16-40149 Document: 00514910055 Page: 1 Date Filed: 04/10/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-40149 FILED April 10, 2019 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DANIEL RIVERA-HERNANDEZ, Defendant – Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 2:15-CR-785-1 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES B..
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Case: 16-40149 Document: 00514910055 Page: 1 Date Filed: 04/10/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40149
FILED
April 10, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DANIEL RIVERA-HERNANDEZ,
Defendant – Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:15-CR-785-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
This case was remanded from the Supreme Court of the United States
for further consideration in light of Sessions v. Dimaya,
138 S. Ct. 1204 (2018).
We placed this case in abeyance while the decision in United States v. Reyes-
* Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
Case: 16-40149 Document: 00514910055 Page: 2 Date Filed: 04/10/2019
No. 16-40149
Contreras,
910 F.3d 169 (5th Cir. 2018), was pending. After Reyes-Contreras
was issued, we requested supplemental briefs from the parties addressing the
decision’s impact on Rivera-Hernandez’s contention that his second-degree
conviction under Utah Code § 76-5-103(1)(a) (1995)—an offense requiring that
a person “intentionally cause[] serious bodily injury to another” as an
element—is not a “crime of violence” under 18 U.S.C. § 16(a), and, thus, not an
“aggravated felony” under 8 U.S.C. § 1101(a)(43)(F).
Throughout his appeal, Rivera-Hernandez has relied on United States v.
Vargas-Duran,
356 F.3d 598, 605 (5th Cir. 2004), overruled by
Reyes-Contreras,
910 F.3d at 183, and maintained that causation of injury is not the same as the
use of force. Rivera-Hernandez concedes that Reyes-Contreras precludes such
an argument.
See 910 F.3d at 183 (eliminating the distinction between causing
injury and using force).
Nevertheless, Rivera-Hernandez continues to argue that the district
court’s judgment should be vacated because, in his view, Reyes-Contreras
violates due process as it constitutes “an unforeseeable judicial enlargement of
a criminal statute, applied retroactively, operat[ing] precisely like an ex pose
facto law.” Bouie v. City of Columbia,
378 U.S. 347, 353 (1964). This due
process argument is foreclosed by United States v. Gomez,
917 F.3d 332, 334
(5th Cir. 2019), which rejected the same due process argument on the grounds
that “Reyes-Contreras did not make previously innocent activities criminal” but
“merely reconciled our circuit precedents with the Supreme Court’s decision in
[United States v. Castleman,
572 U.S. 157 (2014)].”
We AFFIRM the district court’s judgment.
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