     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                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.
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                                  No. 19-20649
      The district court’s erroneous application of the 2018 Guidelines and the
§ 2L21.2(b)(2) enhancement therein constitutes procedural error, which “is
harmless if the error did not affect the district court’s choice of sentence.”
United States v. Halverson, 897 F.3d 645, 652 (5th Cir. 2018); see also
Martinez-Ovalle, 956 F.3d at 295 n.34 (“An ‘ex post facto error may be
harmless’ when ‘the record makes clear that the District Court would have
imposed the same sentence under the older, more lenient Guidelines that it
imposed under the newer, more punitive ones.’” (quoting Peugh v. United
States, 569 U.S. 530, 551 (2013)). “First, the government must compellingly
prove that the district court would have imposed a sentence outside the
properly calculated sentencing range for the same reasons it provided at the
sentencing hearing.     Second, the government must demonstrate that the
‘sentence the district court imposed was not influenced in any way by the
erroneous Guidelines calculation.” United States v. Martinez-Romero, 817 F.3d
917, 924 (5th Cir. 2016) (internal citation omitted) (quoting United States v.
Ibarra-Luna, 628 F.3d 712, 717–19 (5th Cir. 2010)). The government has not
met its burden.
      The government first argues that the district court would have imposed
the same sentence regardless of the error because it “expressly considered both
Guidelines ranges on the record” before deciding on Aguirre’s 36-month
sentence. The district court stated: “If I grant your objection, then it’s a 24- to
30-month sentence rather than 46 to 57. . . . The probation officer set out why
. . . it should not be an ex post facto violation to apply it. I’d like to hear
anything additional you have to say, and I’ll hear from the government.”
Though this discussion could be interpreted to support the government’s
argument, it could just as easily be interpreted as a summary of the relevant
arguments and Aguirre’s objections to the PSR.          Where a district court’s
statements are, as here, “open to multiple interpretations” and fail to “clearly
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                                 No. 19-20649
show the judge would have imposed the [same] sentence regardless of which
Guidelines applied,” we have held the government failed to show harmless
error. Martinez-Ovalle, 956 F.3d at 295 n.34 (citations and quotation marks
omitted).
      The government further argues that, viewed as a whole, the sentencing
transcript reflects the district court’s “purposeful intent to select an
approximate three-year sentence that was in-between the parties’ competing
Guidelines ranges, regardless of the objection, based on Aguirre’s criminal
history.” But the transcript itself belies this argument. The district court was
faced with numerous arguments and objections in addition to the Ex Post Facto
argument, including that Aguirre should get credit for time served in state
custody and that his criminal history was nonviolent, warranting a downward
departure even from the correct Guidelines range. Importantly, the district
court explicitly referenced these arguments, noting that its 36-month sentence
“adequately captures the seriousness of the criminal history and . . . gives
partial credit to the time spent in state custody” or, alternatively, “as a
downward departure.” In contrast to its explicit consideration of Aguirre’s
other arguments, the court did not at this point make any reference to the
enhancement at issue here or Aguirre’s proposed Guidelines range. These
statements, combined with the district court’s statement that its sentence “is
not as low as the defense asks” nor “as high as the government asks,” reflects
the likelihood that the district court was splitting the difference between the
incorrect Guidelines range and the correct one, indicating “that the improper
[G]uideline calculation influenced the sentence.” Martinez-Romero, 817 F.3d
at 926.
      For these reasons, the district court’s procedural error in sentencing
Aguirre under the 2018 Guidelines was not harmless. We therefore VACATE
and REMAND for resentencing in accordance with this opinion.
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