Case: 21-10082 Document: 00515927717 Page: 1 Date Filed: 07/07/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 7, 2021
No. 21-10082
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Juan Samuel Rodriguez-Huitron,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:20-CR-41-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Juan Samuel Rodriguez-Huitron appeals his guilty plea conviction and
57-month prison sentence for illegal reentry after removal in violation of 8
U.S.C. § 1326(a). He asserts that the district court plainly erred in classifying
his pre-removal Texas conviction for aggravated assault as an aggravated
*
Pursuant to 5th 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
Case: 21-10082 Document: 00515927717 Page: 2 Date Filed: 07/07/2021
No. 21-10082
felony conviction. See § 1326(b)(1)-(2). Specifically, Rodriguez-Huitron
challenges the district court’s determination that the offense of aggravated
assault under Tex. Penal Code Ann. § 22.02, which includes reckless
conduct, constitutes a crime of violence under 18 U.S.C. § 16(a) and thus an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
Significantly, both the Government and Rodriguez-Huitron have
conceded that his appellate argument is foreclosed by United States v. Reyes-
Contreras, 910 F.3d 169, 173-74, 183 (5th Cir. 2018) (en banc), which held that
the nearly identical elements clause of the “crime of violence” definition
found in the commentary to former U.S.S.G. § 2L1.2(b)(1) applies to
knowing or reckless conduct. See also United States v. Gomez Gomez, 917 F.3d
332, 333-34 (5th Cir. 2019) (applying Reyes-Contreras in determining that a
Texas aggravated assault offense was a crime of violence under § 16(a)),
vacated, No. 19-5325, 2021 WL 2519037 (U.S. June 21, 2021). However, the
Supreme Court recently decided Borden v. United States, No. 19-5410, 2021
WL 2367312, at *12 (U.S. June 10, 2021), which concluded that offenses with
a mens rea of recklessness are not encompassed by the elements clause of the
“violent felony” definition in the Armed Career Criminal Act (ACCA). See
18 U.S.C. § 924(e)(2)(B)(i). Subsequently, the Supreme Court vacated this
court’s ruling in Gomez Gomez and remanded for reconsideration in light of
Borden. Gomez Gomez v. United States, No. 19-5325, 2021 WL 2519037, at *1
(U.S. June 21, 2021).
In light of the foregoing, summary affirmance is not appropriate. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
DENIED, and its alternative motion for an extension of time is
GRANTED. The Government is ORDERED to file its brief within 30
days after the issuance of the mandate in Borden v. United States.
2