FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS November 25, 2020 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 19-1268 DEIVY ROMERO-LOPEZ, a/k/a Davie Romero-Lopez, a/k/a Jonathan Aria-Ramirez, Defendant - Appellant. ------------------------------------------------------- Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CR-00096-LTB-1) _________________________________ Meredith B. Esser, Assistant Federal Public Defender, (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Denver, Colorado for Defendant-Appellant. Marissa R. Miller, Assistant United States Attorney, (Jason R. Dunn, United States Attorney, with her on the briefs) Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee. _________________________________ Before LUCERO, KELLY, and BACHARACH, Circuit Judges. _________________________________ BACHARACH, Circuit Judge. _________________________________ This appeal involves the sentence of Mr. Deivy Romero-Lopez, who was convicted of illegally reentering the United States after being removed. 8 U.S.C. § 1326(a), (b)(1). The crime of illegal reentry begins when a noncitizen returns to this country after removal and continues until he or she is “found” in the United States. United States v. Villarreal-Ortiz, 553 F.3d 1326, 1330 (10th Cir. 2009). Mr. Romero-Lopez pleaded guilty, admitting that he’d been found in the United States after his removal. Given his guilty plea and admission, the question here is not whether he committed the crime, but when. The timing matters for his sentence because the Sentencing Commission dramatically increased the guideline ranges for individuals convicted of illegal reentry. Focusing on this increase, the parties disagree over whether Mr. Romero-Lopez had been “found” before the change went into effect. The district court concluded that he had been found after the change, triggering the increased guideline range. We uphold this conclusion under the plain-error standard. 1. The guideline range turns on when Mr. Romero-Lopez was “found.” The “starting point” for a sentence is the applicable guideline range. United States v. Rosales-Miranda, 755 F.3d 1253, 1259 (10th Cir. 2014) (quoting Gall v. United States, 552 U.S. 38, 49 (2007)). To determine that range, the district court needed to decide which annual version of the 2 guidelines to use because the Sentencing Commission had changed the applicable provision in November 2016. Compare U.S. Sent’g Guidelines Manual § 2L1.2 (U.S. Sent’g Comm’n 2015), with U.S. Sent’g Guidelines Manual § 2L1.2 (U.S. Sent’g Comm’n 2016), and U.S. Sent’g Guidelines Manual § 2L1.2 (U.S. Sent’g Comm’n 2018). Because of the change, the guideline ranges for illegal reentry sharply increased in November 2016. The new version of the guidelines would apply only if Mr. Romero- Lopez’s offense ended on or after the date of the change. See Peugh v. United States, 569 U.S. 530, 532-33 (2013) (concluding that the Ex Post Facto Clause forbids use of guidelines post-dating the offense if that version had increased the guideline range after commission of the offense); U.S. Sent’g Guidelines Manual § 1B1.11(b)(1) (U.S. Sent’g Comm’n 2018) (stating that if the Ex Post Facto Clause would ...
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