Case: 18-40460 Document: 00516273687 Page: 1 Date Filed: 04/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 18-40460 April 8, 2022
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Javier Segovia-Lopez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:17-CR-895-1
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Davis, Smith, and Higginson, Circuit Judges.
Per Curiam:*
This sentencing appeal returns to us on remand from the Supreme
Court after it issued its opinion in Borden v. United States, 141 S. Ct. 1817,
*
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opinion should not be published and is not precedent except under the limited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: 18-40460 Document: 00516273687 Page: 2 Date Filed: 04/08/2022
No. 18-40460
1834 (2021), wherein the Court held that offenses requiring only proof of
reckless causation of injury do not qualify as violent felonies under the “force
clause” of the Armed Career Criminal Act (“ACCA”). Defendant Javier
Segovia-Lopez asserts, and the Government agrees, that in light of Borden,
Segovia-Lopez’s prior conviction for aggravated assault under Texas Penal
Code §§ 22.01(a)(1)-(3) does not qualify as a violent felony under the ACCA.
In our recent decision in United States v. Gomez Gomez, --- F.4th ---, 2022
WL 152160, *2 (5th Cir. Jan. 18, 2022), we addressed this specific issue and
held that this offense is not an aggravated felony under Borden because it
includes three indivisible mental states, one of which is recklessness.
Therefore, because Segovia-Lopez’s prior conviction for aggravated assault
under Texas Penal Code §§ 22.01(a)(1)-(3) does not qualify as an aggravated
felony, his sentence should not have been enhanced under the ACCA.
Accordingly, we VACATE Segovia-Lopez’s sentence and REMAND
to the district court for resentencing.
2
United States v. Segovia-Lopez
Combined Opinion