United States v. Ramon Hernandez-Ramirez

Case: 16-41253 Document: 00514080575 Page: 1 Date Filed: 07/19/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41253 FILED
Summary Calendar July 19, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAMON HERNANDEZ-RAMIREZ, also known as Ramon Hernandez,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:16-CR-492-1

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Ramon Hernandez-Ramirez appeals the 30-month sentence imposed
following his guilty plea conviction for illegal reentry. He contends that the
district court reversibly erred by imposing a 16-level enhancement under the
crime of violence provision of U.S.S.G. § 2L1.2(a)(1)(A)(ii) (2015) and by
imposing judgment under 8 U.S.C. § 1326(b)(2) based on his prior Texas felony
conviction of aggravated assault with a deadly weapon.

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
 Case: 16-41253 Document: 00514080575 Page: 2 Date Filed: 07/19/2017

No. 16-41253

Hernandez-Ramirez argues that Texas aggravated assault is broader
than generic aggravated assault and, furthermore, does not require the use or
threatened use of force for purposes of § 2L1.2(a)(1)(A)(ii). He concedes that
his argument is foreclosed by United States v. Guillen-Alvarez, 489 F.3d 197,
198 (5th Cir. 2007), but he argues that Guillen-Alvarez and United States v.
Villasenor-Ortiz, No. 16-10366, ___ F. App’x ___, 2017 WL 113917, 3 (5th Cir.
Jan. 11, 2017), were wrongly decided. This court recently held that Guillen-
Alvarez’s holding remains valid after the Supreme Court’s decision in Mathis
v. United States, 136 S. Ct. 2243 (2016). United States v. Shepherd, 848 F.3d
425, 427-28 (5th Cir. 2017). Moreover, this court is bound by its own precedent
unless and until it is altered by the Supreme Court. See Wicker v. McCotter,
798 F.2d 155, 157-58 (5th Cir. 1986). It is unnecessary to consider whether his
conviction involves the use of force.
He also argues that the entry of judgment under § 1326(b)(2) was plainly
erroneous because Texas aggravated assault with a deadly weapon is not an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F), which defines aggravated
felony by reference to 18 U.S.C. § 16. His conviction does not fall within § 16(a).
See United States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir. 2006).
Hernandez-Ramirez recognizes that this court has rejected a challenge to the
constitutionality of § 16(b) based on Johnson v. United States, 135 S. Ct. 2551
(2015). See United States v. Gonzalez-Longoria, 831 F.3d 670, 672-79 (5th Cir.
2016) (en banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259). He notes,
however, that the Supreme Court has granted certiorari in Sessions v. Dimaya,
137 S. Ct. 31 (2016), to resolve a circuit split over Johnson’s effect on § 16(b).
The grant of certiorari in Dimaya does not alter this court’s holding in
Gonzalez-Longoria. See Wicker, 798 F.2d at 157-58.
The judgment of the district court is AFFIRMED.

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