United States v. Jose Tello-Segundo

Case: 15-41474 Document: 00514071496 Page: 1 Date Filed: 07/13/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 15-41474
Fifth Circuit

FILED
Summary Calendar July 13, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee

JOSE GUADALUPE TELLO-SEGUNDO,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-693-1

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Jose Guadalupe Tello-Segundo appeals the 32-month sentence imposed
following his guilty plea conviction for illegal reentry. He contends that the
district court plainly erred by imposing a 16-level enhancement under the
crime of violence provision of U.S.S.G. § 2L1.2(a)(1)(A)(ii) (2014) based on his
prior Texas 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41474 Document: 00514071496 Page: 2 Date Filed: 07/13/2017

No. 15-41474

For the first time on appeal, Tello-Segundo argues that Texas
aggravated assault does not qualify as a crime of violence under
§ 2L1.2(a)(1)(A)(ii) (2014) because it is broader than generic aggravated
assault and does not have as an element the use or threatened use of force. See
§ 2L1.2, comment. (n.1(B)(iii)) (2014). He contends that § 22.02 is broader than
generic aggravated assault because it can be violated with merely a reckless
mens rea, and that, under Mathis v. United States, 136 S. Ct. 2243 (2016), the
statute is indivisible with respect to the various applicable mentes reae. Tello-
Segundo acknowledges United States v. Guillen-Alvarez, 489 F.3d 197, 200-01
(5th Cir. 2007), which held that the Texas offense of aggravated assault
qualifies as generic aggravated assault and is thus a crime of violence for
purposes of § 2L1.2 (2014), but he argues that Guillen-Alvarez was wrongly
decided. Because Tello-Segundo did not raise this argument in the district
court, we review for plain error only. See United States v. Wikkerink, 841 F.3d
327, 331 (5th Cir. 2016).
We recently held that Guillen-Alvarez’s holding remains valid after
Mathis. United States v. Shepherd, 848 F.3d 425, 427-28 (5th Cir. 2017).
Moreover, we are bound by our 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). We therefore need not consider whether Tello-Segundo’s prior
conviction qualified as a crime of violence under the use-of-force prong. See
United States v. Castro-Alfonso, 841 F.3d 292, 298 (5th Cir. 2016).
AFFIRMED.