Whether a conviction for assault under a state statute that does not require physical force is categorically a crime of violence under 8 U.S.C. § 16(a)

QUESTIONS PRESENTED FOR REVIEW This Honorable Court has before it the opportunity to resolve a major split between the Circuit Courts of Appeal regarding the use of the definition of a crime of violence under 8 U.S.C. § 16(a). In this case, the Fifth Circuit, like other Circuits, has unmistakably departed from the clear language of 8 U.S.C. § 16(a) by holding that a conviction under a state statute, which requires no physical force in the causation of an injury, is equal to physical force, and as such, is a crime of violence. Conversely, the First, Second, and Fourth Circuits have held that for use of force to be an element of a statute, the language of the statute must specifically state so. Herein, Petitioner will show that the Fifth Circuit erred and disregarded this Court’s precedent when it held that Petitioner’s conviction for assault was categorically a crime of violence. If the Fifth Circuit’s erroneous interpretation is left untouched, then the door to unconstitutional sentencing enhancements is left wide open. This will have a direct impact on the lives of thousands of people awaiting sentencing for similar crimes. It will also suddenly produce grave immigration consequences for thousands of individuals who will be disqualified from the immigration benefits Congress meant to afford them. Accordingly, the questions presented for review are as follows: Accordingly, the questions presented for review are as follows: 1. Whether the Court of Appeals for the Fifth Circuit erred as a matter of law in holding that Petitioner’s conviction for unlawful entry ii QUESTIONS PRESENTED FOR REVIEW— Continued warranted an eight-level sentence enhancement under the U.S. Sentencing Guidelines (U.S.S.G.”) because Petitioner’s prior conviction for assault in Texas was a crime of violence under 8 U.S.C. § 16(a) and, as a result, an aggravated felony under 8 U.S.C. § 1101(a)(43)\(F) and U.S.S.G. § 2L1.2(b)(1)(C) (2016). 2. Whether the standard used by the Courts of Appeal for the Third, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits, to determine if an offense is categorically a crime of violence under 8 US.C. § 16(a) is legally erroneous, and the standard for such a determination used by the First, Second, and Fourth Circuits should instead be adopted uniformly across all Circuits. 3. Whether applying the Fifth Circuit’s decision in United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc), which held, inter alia, that for purposes of determining whether a conviction is a crime of violence there is no distinction between direct and indirect force “retroactively” to Petitioner’s sentence violated the Constitution’s protection against unforeseeable judicial enlargements of criminal statutes. 4. Whether the issues presented in this Petition for Writ of Certiorari will not be moot upon Petitioner’s release from incarceration because Petitioner will face harsh collateral immigration consequences due to his assault offense being classified as an aggravated felony by the Fifth Circuit.