United States v. Ramon Hernandez-Ramirez

PER CURIAM: * Ramon Hernandez-Ramirez appeals the 30-month sentence imposed following his guilty plea conviction for illegal reentry. *372 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)(l)(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. 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, 675 Fed.Appx. 424, 426-28 (5th Cir. 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, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (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, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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. Footnotes [*] Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *372 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.