Case: 22-20661 Document: 00516813669 Page: 1 Date Filed: 07/07/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 22-20661 FILED July 7, 2023 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Miguel Angel Pineda Penate, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 4:22-CR-135-1 ______________________________ Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam:* Miguel Angel Pineda Penate pleaded guilty, in September 2022, to one count of being unlawfully present in the United States after having been previously deported and convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). The conviction that qualified Pineda Penate for

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-20661 Document: 00516813669 Page: 2 Date Filed: 07/07/2023

No. 22-20661

commission of an aggravated felony was aggravated assault under Texas Penal Code § 22.01(a)(1).

In our recent decision in United States v. Gomez Gomez, 23 F.4th 575, 576-77 (5th Cir. 2022), we addressed this specific statute in light of the Supreme Court’s decision in Borden v. United States, 141 S. Ct. 1817 (2021).

We held that § 22.01(a)(1) does not define an aggravated felony under Borden because it includes three indivisible mental states, one of which is recklessness. Therefore, because Pineda Penate’s prior conviction for assault under § 22.01(a)(1) does not qualify as an aggravated felony, his sentence should not have been enhanced pursuant to § 1326(b)(2).

This case is REMANDED with instruction for the sentence to be reformed in line with this opinion.