     Case: 19-10439       Document: 00515460629         Page: 1     Date Filed: 06/22/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                     No. 19-10439                              June 22, 2020
                                   Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

HUGO HUMBERTO PEREZ RANGEL,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:18-CR-349-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Hugo Humberto Perez Rangel challenges his sentence for illegal
presence in the United States on 4 December 2017, in violation of 8 U.S.C.
§ 1326(a). He contends the district court violated the Ex Post Facto Clause by
imposing an eight-level enhancement under the 2018 version of Sentencing
Guideline § 2L1.2(b)(3), instead of a four-level enhancement under the 2016




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 19-10439     Document: 00515460629      Page: 2   Date Filed: 06/22/2020


                                  No. 19-10439

version.   The Government counters in the alternative that any error in
applying the additional four levels was harmless.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
       “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.”
United States v. Martinez-Ovalle, 956 F.3d 289, 295 n.34 (5th Cir. 2020)
(emphasis and internal quotation marks omitted) (quoting Peugh v. United
States, 569 U.S. 530, 550 n.8 (2013)). Toward that end, the proponent of the
sentence must show the violation is harmless “beyond a reasonable doubt”.
Chapman v. California, 386 U.S. 18, 24 (1967); United States v. Ibarra-Luna,
628 F.3d 712, 718 (5th Cir. 2010). There are “at least two methods” to satisfy
this burden; as relevant in this instance, the proponent may “show that the
district court considered both [Guidelines] ranges (the one now found incorrect
and the one now deemed correct) and explained that it would give the same
sentence either way”. United States v. Vega-Garcia, 893 F.3d 326, 327 (5th
Cir.) (citation omitted), cert. denied, 139 S. Ct. 441 (2018).




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                                   No. 19-10439

       The Government has met this burden. Considering the issue “in detail”,
the    court   first   discussed    the       presentence     investigation   report’s
recommendations of a four-level enhancement (because of the ex post facto
concern) and range of 33–41 months’ imprisonment before concluding the
eight-level enhancement applied, yielding a guidelines range of 51–63 months’
imprisonment.     In any event, after describing Perez’ extensive pattern of
recidivism and illegal border crossings, it unambiguously explained it would
impose the same sentence of 54 months’ imprisonment whether a four- or
eight-level enhancement applied. See id. at 327–28.
       The authority relied upon by Perez is distinguishable. See United States
v. Rico-Mejia, 859 F.3d 318, 323 (5th Cir. 2017) (noting there was “no explicit
or particularized statement from the district court showing that it calculated
or considered the correct Guidelines range”), overruled on other grounds by
United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc);
United States v. Tanksley, 848 F.3d 347, 353 (5th Cir. 2017) (considering only
whether Government satisfied different method for showing harmlessness);
United States v. Martinez-Romero, 817 F.3d 917, 924 (5th Cir. 2016) (noting
there was “no record evidence that the district court considered the lower,
correctly calculated [G]uideline range”).
       AFFIRMED.




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