Case: 19-20649 Document: 00515433919 Page: 1 Date Filed: 05/29/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-20649 May 29, 2020 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. RAMON AGUIRRE, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CR-195-1 Before DENNIS, ELROD, and COSTA, Circuit Judges. PER CURIAM:* Ramon Aguirre pleaded guilty on May 22, 2019 to illegal reentry into the United States after having been removed following a felony conviction, in violation of 8 U.S.C. § 1326(a) & (b)(1). The district court sentenced Aguirre under the 2018 Sentencing Guidelines, utilizing a 10-level enhancement pursuant to § 2L1.2(b)(2)(A) (2018) because Aguirre had been convicted of a felony before his first deportation in 2009 and was ultimately sentenced to * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 19-20649 Document: 00515433919 Page: 2 Date Filed: 05/29/2020 No. 19-20649 serve a six-year prison term upon his return to the United States in 2012. The probation department determined that Aguirre’s illegal reentry offense concluded November 6, 2017, the date he was apprehended by Immigration and Customs Enforcement officials. As of that date, the 2016 Guidelines remained in effect and would have resulted in only a 4-level enhancement rather than a 10-level enhancement applicable under the 2018 Guidelines. U.S.S.G. § 2L1.2(b)(1)(D) (2016); United States v. Franco-Galvan, 864 F.3d 338 (5th Cir. 2017). Aguirre objected to the use of the 2018 Guidelines, arguing that their application resulted in a harsher penalty and therefore violated the Ex Post Facto clause of the United States Constitution. While noting that the amendment to the Guidelines implementing the harsher penalty was somewhat substantive, the district court nonetheless overruled Aguirre’s objection and applied the 2018 Guidelines, adopting the Presentence Report (PSR) and sentencing Aguirre to a below-Guidelines sentence of 36 months. After the district court’s judgment, this court decided United States v. Martinez-Ovalle, 956 F.3d 289, 292–95 (5th Cir. 2020), where we held that applying a § 2L21.2(b)(2) enhancement under the 2018 Guidelines to an illegal reentry offense that concluded before the effective date of the 2018 Guidelines violated the Ex Post Facto Clause. The government concedes that its contrary argument—that no such violation exists—“necessarily fails under the rule of orderliness.” Nonetheless, the government maintains that “[e]ven assuming error under Martinez-Ovalle, this Court still must consider harmlessness,” which “requires ‘a careful review of the record’ in the individual case.” Here, the government argues, “the record . . . conclusively demonstrates the error’s harmlessness.” Because the government concedes that Martinez-Ovalle resolved any question whether applying the 2018 Guidelines to Aguirre violated the Ex Post Facto clause, we need only consider the contested issue of harmless error. 2 Case: 19-20649 Document: 00515433919 Page: 3 Date Filed: 05/29/2020 No. 19-20649 ...
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