Case: 17-10745      Document: 00514940804         Page: 1    Date Filed: 05/02/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                      No. 17-10745
                                                                               FILED
                                                                            May 2, 2019
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

              Plaintiff - Appellant

v.

ROBERT EARL MITCHELL, JR.,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-322-1


Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Robert Mitchell pleaded guilty to unlawful possession of a firearm by a
felon. The Presentence Report (“PSR”) concluded that Mitchell had been
convicted of one crime of violence under U.S.S.G. § 2K2.1(a)(4)(A). The
government objected, arguing that Mitchell’s felony conviction for domestic-
violence assault should also be treated as a crime of violence. Despite
sympathizing with the government’s position, the district court stated that it


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10745
was bound to overrule the objection by our (since overturned) precedent. The
district court sentenced Mitchell using the PSR’s calculation, and the
government appeals.
      The conviction at issue stemmed from a 2012 incident, for which Mitchell
pleaded guilty to domestic assault. Under the Texas assault statute, Mitchell
necessarily admitted to “intentionally, knowingly, or recklessly caus[ing]
bodily injury to another.” TEX. PENAL CODE ANN. § 22.01(a)(1). Because he had
previously been convicted of domestic assault, the offense was enhanced to a
felony. 

      The Sentencing Guidelines set a base offense level for unlawful
possession in part by determining whether the defendant has previous
convictions for a “crime of violence.” See U.S.S.G. § 2K2.1. “Crime of violence”
is defined as a felony offense that “has as an element the use, attempted use,
or threatened use of physical force against the person of another” or is one of
several enumerated crimes not at issue. U.S.S.G. § 4B1.2(a).
      The only issue on appeal is whether Mitchell’s enhanced domestic
assault conviction has as an element the use of force. The Government argues
that the requirement of causing bodily injury is sufficient to meet the “use of
force” requirement. The Government also contends that the required level of
force satisfies the degree of force required by the sentencing guidelines.
Mitchell does not dispute the second point, arguing only that under this
circuit’s precedent, causing bodily injury does not satisfy the “use of force”
requirement.
      At the time the parties completed their briefing, the applicable circuit
precedent could be found in cases including United States v. Villegas-
Hernandez, 

, 879–80 (5th Cir. 2006), United States v. Rico-Mejia,

, 322–23 (5th Cir. 2017), and United States v. Reyes-Contreras,

, 122–23 (5th Cir. 2018). Each of these cases held that when
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                                  No. 17-10745
determining whether the elements of a crime include the use of force, there is
a distinction between causing bodily injury and using force. However, all these
cases have been expressly overruled by the en banc court in United States v.
Reyes-Contreras, 

(5th Cir. 2018). There, the court held that in
“finding ‘use of force’ for purposes of identifying [crimes of violence], the . . .
now-repudiated distinction between causing injury and using direct force” was
abolished, as was the distinction between direct and indirect force. 

That conclusion decides this appeal in the Government’s favor. See also United
States v. Gracia-Cantu, 

, 254 (5th Cir. 2019) (per curiam) (holding
that Texas domestic assault meets the definition of a crime of violence).
      We reverse and remand for resentencing.




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