PER CURIAM

Appeal from the United States District Court for the Southern District of Texas
USDC No. 2:14-CR-913-1

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges. PER CURIAM:

Carlos Alberto Perez-de Leon pleaded guilty to illegal reentry and was sentenced to 66 months of imprisonment. Perez-de Leon appealed his judgment of conviction and argued for the first time on appeal that the district court plainly erred by characterizing his prior conviction for Texas aggravated assault with a deadly weapon as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) for the purpose of convicting and sentencing him under 8 U.S.C. § 1326(b)(2). He contended that in doing so, the district court must have relied on the "residual clause" of 18 U.S.C. § 16, incorporated by reference into § 1101(a)(43)(F), which he argued was unconstitutionally vague. While Perez-de Leon's appeal was pending, his argument was foreclosed by this court's en banc decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016). We granted the Government's motion for summary affirmance and affirmed Perez-de Leon's conviction.

Perez-de Leon petitioned for certiorari before the Supreme Court, which granted his petition, vacated his judgment, and remanded for consideration in light of its recent decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which held § 16(b)—the "residual clause"—to be unconstitutionally vague. This court then directed the parties to file letter briefs regarding what action we should take on remand and whether we should decide any pending issues. The parties timely filed their briefs, essentially agreeing that Perez-de Leon's conviction under § 1326(b) can no longer stand if based on § 16(b). The parties dispute, however, whether Perez-de Leon's judgment of conviction should be affirmed on the alternate ground that his prior conviction constitutes an aggravated felony under § 16(a).

I.

To be convicted of illegal reentry under § 1326(b)(2) of the Immigration and Nationality Act ("INA"), a defendant's removal must have been "subsequent to a conviction for commission of an aggravated felony." As relevant here, the INA defines "aggravated felony" in § 1101(a)(43)(F) as a "crime of violence," as defined in 18 U.S.C. § 16, for which the term of imprisonment is at least one year. Because § 16(b) no longer applies in this context, we must look to § 16(a), which defines "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." The parties disagree as to whether Perez-de Leon's prior conviction under Texas Penal Code § 22.02(a) for aggravated assault constitutes a crime of violence under § 16(a).

A.

The Government argues that United States v. Shepherd, 848 F.3d 425, 427-28 (5th Cir. 2017) forecloses Perez-de Leon's argument that Texas aggravated assault with a deadly weapon lacks the use or threatened use of physical force as an element. Perez-de Leon contends that Shepherd's actual holding relates to the "residual clause" of United States Sentencing Guidelines ("Guidelines") § 4B1.2(a), and any suggestion that Texas aggravated assault has as an element the use of force is dicta.

Perez-de Leon has the better of this argument. The relevant two sentences in Shepherd are as follows:

Under the provision in the Armed Career Criminal Act ("ACCA") that is worded identically to § 4B1.2, this court found no plain error in holding that a defendant's Texas conviction for aggravated assault has as an element the threatened use of physical force against the person of another. United States v. Guzman, 797 F.3d 346, 348 (5th Cir. 2015). Construing identically worded provisions alike, Shepherd's Texas conviction for aggravated assault is a crime of violence under § 4B1.2. See id.; see also United States v. Guillen-Alvarez, 489 F.3d 197, 201 (5th Cir. 2007).

The second sentence in Shepherd talks about aggravated assault falling within the purview of § 4B1.2, but does not specify which subsection it is discussing. In support of this proposition, Shepherd cites to Guzman and Guillen-Alvarez. Id. As discussed above, Guzman simply held that it was not plain error to find Texas aggravated assault has as an element the use of force. Guzman, 797 F.3d at 348. While Guillen-Alvarez found that § 22.02 was an aggravated felony because it fell within the enumerated offense of aggravated assault under Guidelines § 2L1.2(b)(1)(A)(ii), the court specifically declined to address whether § 22.02 had as an element the use of force. Guillen-Alvarez, 489 F.3d at 200 n.2. Accordingly, neither the cases relied upon in Shepherd nor Shepherd itself affirmatively declares § 22.02(a)(2) has as an element the requisite use of force to qualify as a crime of violence; at most, Shepherd concludes it was not plain error to hold § 22.02(a) was a crime of violence.

While the Government has cited several unpublished cases affirming Shepherd's "holding" that Texas aggravated assault has the use of force as an element, they are not binding and are less persuasive after taking a more careful look at Shepherd's language. See United States v. Johnson, 619 F.3d 469, 473 n.3 (5th Cir. 2010) ("Although unpublished cases from this court rendered after January 1, 1996, and decisions from other circuit courts are not controlling precedent, they may be considered persuasive authority."). In addition, United States v. Ramos, No. 16-41483, 2018 WL 3715591 (5th Cir. Aug. 3, 2018) (unpublished), one of the unpublished opinions cited by the Government, appears to acknowledge that Shepherd may not have been the final say on whether Texas aggravated assault has as an element the use of force. The Ramos court noted, "The same competing caselaw cited in Guzman, along with our published holding in Shepherd and the uniformity of other cases determining that a Texas aggravated assault conviction has the use of force as an element under virtually identical provisions (or at least that there was no clear error in the classification), prevents us from saying that there is clear or obvious error here in entering judgment under § 1326(b)(2)." Ramos, 2018 WL 3715591, at *2 (emphasis added).

"It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel's decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court." Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). However, "[w]here an opinion fails to address a question squarely, we will not treat it as binding precedent." Thomas v. Texas Dep't of Criminal Justice, 297 F.3d 361, 370 n.11 (5th Cir. 2002) (citation omitted). Because Shepherd did not hold that Texas aggravated assault has as an element the use of force, Perez-de Leon's argument is not foreclosed.

B.

While Perez-de Leon's argument is not foreclosed, he did not raise this claim before the district court and our review is therefore limited to whether the district court plainly erred. See United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018) ("Claims not preserved are reviewed for plain error.").

Plain error review involves four components:

First, there must be an error or defect—some sort of [d]eviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

II.

For the foregoing reasons, Perez-de Leon's judgment of conviction is AFFIRMED.