Case: 18-40460 Document: 00516307315 Page: 1 Date Filed: 05/04/2022
REVISED MAY 4, 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 5:17-CR-895-1
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Davis, Smith, and Higginson, Circuit Judges.
Per Curiam:*
*
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opinion should not be published and is not precedent except under the limited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: 00516307315 Page: 2 Date Filed: 05/04/2022
No. 18-40460
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,
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 an “aggravated felony”
for purposes of the enhanced penalty provision of 8 U.S.C. 1326(b)(2). 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 pursuant to § 1326(b)(2) .
Accordingly, we AFFIRM the judgment of conviction under 8
U.S.C. § 1326 but REMAND with instructions to the district court to enter
a corrected judgment of conviction which does not refer to § 1326(b)(2).
2