United States v. Jose Gracia-Cantu
Opinion
We WITHDRAW our prior panel opinion and SUBSTITUTE this opinion. Jose Prisciliano Gracia-Cantu appeals the district court's determination that a conviction under Texas Penal Code §§ 22.01(a)(1) and (b)(2) for "Assault-Family Violence" qualifies as a crime of violence under
Section 16(a) defines a "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another."
Texas "Assault-Family Violence" fits the bill. First, the statute requires that the offense be committed "intentionally, knowingly, or recklessly." Tex. Penal Code § 22.01(a)(1). Second, the statute requires that the defendant "cause[ ] bodily injury,"
Post-
Reyes-Contreras
, Gracia-Cantu has only two remaining arguments. We reject both. First, he asserts that the
degree
of force required by the Texas statute-reaching to "any impairment of physical condition," Tex. Penal Code § 1.07(a)(8), even minor injuries-is too minimal to constitute a crime of violence.
See
Curtis Johnson v. United States
,
Gracia-Cantu fails to provide that case law. The state-court cases he relies on-two finding bodily injury when defendants knowingly transmitted HIV
1
and one finding
*255
bodily injury when a defendant knowingly injected bleach through an IV into a victim's bloodstream
2
-involve force "capable of causing physical pain or injury" to the degree contemplated by
Curtis Johnson
.
Reyes-Contreras
,
Gracia-Cantu's second remaining argument post-
Reyes-Contreras
is that applying
Reyes-Contreras
"retroactively" to his sentence would violate the Constitution's protection against "unforeseeable judicial enlargement[s] of ... criminal statute[s]."
Bouie v. City of Columbia
,
* * *
Reyes-Contreras
applies to Gracia-Cantu's sentence and renders his prior conviction for Texas "Assault-Family Violence" a "crime of violence" under
Billingsley v. State
, No. 11-13-00052-CR,
Saenz v. State
,
Gracia-Cantu also suggests that the Texas statute criminalizes assault through the use of force that is non-physical altogether. For this claim, he points to an indictment of a defendant who sent a tweet with an animation of strobe lights designed to trigger the recipient's epileptic seizures, which they did.
See
Indictment,
State v. Rivello
, Case No. F-1700215-M (Crim. Dist. Ct. No. 5, Dallas Co., Tex. Mar. 20, 2017). Even if an indictment alone can show a realistic probability that a state criminal statute will be interpreted a certain way-an issue we need not address today-this argument would fall short. In
United States v. Castleman
, the Supreme Court explained that "the knowing or intentional causation of bodily injury necessarily involves the use of physical force."
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Jose Prisciliano GRACIA-CANTU, Defendant-Appellant.
- Cited By
- 27 cases
- Status
- Published