Case: 16-11098 Document: 00514046045 Page: 1 Date Filed: 06/23/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11098 FILED
Summary Calendar June 23, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERIC FABIAN CRUZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-474-1
Before KING, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Eric Fabian Cruz pleaded guilty, pursuant to a factual résumé, to four
counts of distributing a controlled substance and one count of possession of a
firearm by a felon. 21 U.S.C. § 841(a)(1), (b)(1)(B) & (C); 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). On appeal, he first contends that this court should disregard
the appeal waiver in his plea agreement. Because Cruz withdrew his plea
agreement prior to rearraignment, we need not address this request.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11098 Document: 00514046045 Page: 2 Date Filed: 06/23/2017
No. 16-11098
Cruz appeals his sentencing as a career offender under U.S.S.G. § 4B1.1
(2015), arguing that the district court plainly erred in characterizing his two
prior convictions for aggravated assault with a deadly weapon under Texas
Penal Code § 22.02 as crimes of violence under U.S.S.G. § 4B1.2 (2015). In
support of this argument, Cruz contends that, even though aggravated assault
is enumerated as a crime of violence in Application Note One in the
commentary of § 4B1.2, the Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2551 (2015), invalidated both the residual clause of
§ 4B1.2(a)(2) and the note. He further contends that his prior Texas offenses
do not qualify as crimes of violence under § 4B1.2(a)(2) because aggravated
assault is not one of the four offenses enumerated therein. Finally, Cruz
argues that his prior offenses do not satisfy the force-as-an-element clause of
§ 4B1.2(a)(1) in light of Mathis v. United States, 136 S. Ct. 2243 (2016).
After Cruz submitted his appellate brief, the Supreme Court held, in
Beckles v. United States, 137 S. Ct. 886, 892 (2017), that § 4B1.2(a)(2)’s residual
clause “is not void for vagueness” because “the Guidelines are not subject to a
vagueness challenge under the Due Process Clause.” Accordingly, Cruz’s
arguments regarding § 4B1.2(a)(2)’s residual clause and Application Note One
are unavailing. We have previously held that a Texas aggravated assault
conviction constitutes the enumerated “aggravated assault” offense. United
States v. Guillen-Alvarez, 489 F.3d 197, 199-201 (5th Cir. 2007); United States
v. Rayo-Valdez, 302 F.3d 314, 318 (5th Cir. 2002). Furthermore, we have
recently confirmed that Texas aggravated assault satisfies § 4B1.2(a)(1)’s
force-as-an-element clause. See United States v. Shepherd, 848 F.3d 425, 427-
28 (5th Cir. 2017). Accordingly, the district court did not plainly err. See
United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015).
AFFIRMED.
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