Case: 19-10957 Document: 00515378937 Page: 1 Date Filed: 04/10/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 19-10957 Fifth Circuit FILED April 10, 2020 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff–Appellee, v. JOSE ISMAEL MARTINEZ-OVALLE, Defendant–Appellant, Appeal from the United States District Court for the Northern District of Texas Before DENNIS, GRAVES, and WILLETT, Circuit Judges. DON R. WILLETT, Circuit Judge: In this sentencing appeal, Jose Ismael Martinez-Ovalle contends that the district court violated the Ex Post Facto Clause by sentencing him under the 2018 Sentencing Guidelines (those in effect when he was sentenced) rather than under the more lenient 2016 Guidelines (those in effect when he committed his crime). We agree, vacate the district court’s sentencing order, and remand for resentencing. I In 2009, Martinez-Ovalle, who was in the country illegally, was convicted of two Texas felonies, sentenced to probation, and deported. He reentered the United States at an unknown time. In 2015, Martinez-Ovalle was taken into custody and deported again, but not before a Texas court revoked his prior Case: 19-10957 Document: 00515378937 Page: 2 Date Filed: 04/10/2020 probation and imposed a two-year prison sentence instead. Nevertheless, he persisted. In 2016, Martinez-Ovalle illegally reentered the United States yet again. And yet again, he was arrested on Texas state charges. 1 This time, though, Immigration and Customs Enforcement officials took Martinez-Ovalle into custody from the state jail, and he pleaded guilty to illegal reentry after removal. 2 The probation officer who prepared Martinez-Ovalle’s presentence report determined that Martinez-Ovalle’s crime concluded in 2018, when the 2016 Sentencing Guidelines were still effective. But she applied the stricter 2018 Guidelines, dismissing any ex post facto concerns. Under the 2018 Guidelines, Martinez-Ovalle received a total offense level of 17, including an eight-level § 2L1.2(b)(2)(B) increase, and a sentencing range of 30–37 months’ imprisonment. 3 Martinez-Ovalle objected, arguing that the Ex Post Facto Clause bars retroactive application of any post-offense Guidelines amendment that yields a stiffer sentence. 4 Martinez-Ovalle maintained that the sentencing judge was required to apply the 2016 Guidelines. At issue was the § 2L1.2(b)(2) enhancement. Under the 2018 Guidelines, Martinez-Ovalle received an eight-level § 2L1.2(b)(2)(B) enhancement because he received a two-year Texas sentence 1 Martinez-Ovalle was sentenced to 45 days in a Texas jail. 2 8 U.S.C. § 1326(a). Martinez-Ovalle didn’t have a plea agreement. 3 USSG § 2L1.2(b)(2)(B) (2018) (“If, before the defendant was ordered deported . . . from the United States for the first time, the defendant engaged in [] conduct that, at any time, resulted in . . . a conviction for a felony offense . . . for which the sentence imposed was two years or more, increase by 8 levels.”). 4 Martinez-Ovalle also raised other objections not pursued on appeal. Case: 19-10957 Document: 00515378937 Page: 3 Date Filed: 04/10/2020 for conduct that occurred prior to his first removal. 5 But under the 2016 Guidelines, Martinez-Ovalle would have avoided this § 2L1.2(b)(2)(B) enhancement because, prior ...
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