     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
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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.
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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 to his first removal, his probation had not been
revoked, and he had not received a prison sentence. 6 Instead, he would have
only received a four-level § 2L1.2(b)(2)(D) enhancement due to his original
Texas felony convictions. 7 And if the 2016 four-level enhancement was applied
instead of the 2018 eight-level enhancement, Martinez-Ovalle’s minimum
guideline sentence would have been 12 months lower. 8
       The sentencing court overruled Martinez-Ovalle’s objection and adopted
the PSR. But then, after considering the “equity” of Martinez-Ovalle’s ex post




       5   USSG § 2L1.2(b)(2)(B) (2018).
       6 At the time, the Fifth Circuit interpreted the USSG § 2L1.2(b)(2)(B) (2016) to apply
only if the probation was revoked, and the sentence imposed, prior to first removal. United
States v. Franco-Galvan, 864 F.3d 338 (5th Cir. 2017). The 2018 Guidelines included
Amendment 809, which changed § 2L1.2(b)’s text and application notes to specifically nullify
Franco-Galvan. USSG § 2L1.2(b)(2) (2018); USSG Supp. App’x C, Amendment 809 (“[T]he
length of a sentence imposed for purposes of §2L1.2(b)(2) and (b)(3) should include any
additional term of imprisonment imposed upon revocation of probation, suspended sentence,
or supervised release, regardless of whether the revocation occurred before or after the
defendant’s first (or any subsequent) order of removal.” (emphasis added)).
       7 USSG § 2L1.2(b)(2)(D) (2016) (“If, before the defendant was ordered deported or
ordered removed from the United States for the first time, the defendant sustained . . . a
conviction for any other felony offense. . . increase by 4 levels.”).
       8 Here’s an overview of the sentencing math. Martinez-Ovalle’s total offense level was
17. This was based on a base offense level of 8, an 8-level increase based on USSG §
2L1.2(b)(2)(B), a 4-level increase based on USSG § 2L1.2(b)(3)(D), and a 3-level decrease
based on USSG § 3E1.1(a)–(b). Martinez-Ovalle had a criminal history category of III. A total
offense level of 17 and a criminal history category of III correspond to a sentencing range of
30–37 months. USSG, Ch. 5, pt. A (2018) (sentencing table). The 8-level increase based on §
2L1.2(b)(2)(B) is the subject of this appeal. If instead of this 8-level increase, a 4-level increase
were applied under § 2L1.2(b)(2)(D)—as Martinez-Ovalle argues should have happened—
then Martinez-Ovalle’s total offense level would be 13. A total offense level of 13 and a
criminal history category of III correspond to a sentencing range of 18–24 months. USSG,
Ch. 5, pt. A (2018). The 2018 Guidelines increased Martinez-Ovalle’s minimum guideline
sentence by 12 months when compared to the 2016 Guidelines’ minimum guideline sentence.
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facto argument, the judge “slightly var[ied]” from the 30–37 month range and
sentenced Martinez-Ovalle to 23 months’ imprisonment. 9
                                                II
         On appeal, Martinez-Ovalle re-urges that the Ex Post Facto Clause
required the sentencing court to apply the 2016 Guidelines to his 2018 offense.
An ex post facto violation occurs when “a defendant is sentenced under
Guidelines promulgated after he committed his criminal acts and the new
version provides a higher applicable Guidelines sentencing range than the
version in place at the time of the offense.” 10 Resolving Martinez-Ovalle’s ex
post facto claim requires interpreting the Guidelines, and we review the
district court’s interpretation and application of the Guidelines de novo. 11
         A district court usually applies the Guidelines “effective at the time of
sentencing.” 12 But when this generates a “harsher penalty” than applying the
Guidelines effective at the time of the crime, the Ex Post Facto Clause obligates
the district court to apply the older, more lenient Guidelines. 13 And since the
2018 Guidelines increased Martinez-Ovalle’s minimum guideline sentence by




        The judge actually sentenced Martinez-Ovalle to 24 months but reduced his “final
         9

sentence” by one month for time Martinez-Ovalle had already spent in custody.
         10   Peugh v. United States, 569 U.S. 530, 533 (2013).
         11   United States v. Godoy, 890 F.3d 531, 535–36 (5th Cir. 2018), as revised (June 25,
2018).
         United States v. Myers, 772 F.3d 213, 218 (5th Cir. 2014) (internal quotation marks
         12

and citation omitted).
         13 Id. at 219 (internal quotation marks and citation omitted); Peugh, 569 U.S. at 544;
U.S. Const. art I, § 9, cl. 3 (“No . . . ex post facto Law shall be passed.”); Calder v. Bull, 3 U.S.
(3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (holding that ex post facto laws include “[e]very law that
. . . inflicts a greater punishment[] than the law annexed to the crime[] when committed.”);
see, e.g., Godoy, 890 F.3d at 533 (finding no ex post facto violation when the defendant’s “total
offense level [was] identical under both the 2015 and 2016 Guidelines”).
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12 months compared to the 2016 Guidelines’ minimum guideline sentence, we
side with Martinez-Ovalle. 14
       The Government urges us to adopt the Sixth Circuit’s approach in Huff
v. United States: retroactively applying “clarifying” amendments doesn’t
violate the Ex Post Facto Clause because that doesn’t increase the defendant’s
sentence, it only “further expla[ins] the Guidelines range that always was
applicable to a defendant.” 15 As we are bound by precedent—both ours and,
more importantly, the Supreme Court’s—we decline. 16
       In Huff, the defendant completed his crime when the 2002 Guidelines
applied but was sentenced after the 2007 Guidelines took effect. 17 Applying the
2007 Guidelines, the district court included an enhancement not available
under the 2002 Guidelines. 18 As a result, Huff’s sentencing range increased
from “53 to 71 months to 70 to 87 months.” 19 Huff cried constitutional foul
under the Supreme Court’s Peugh decision, which held that an ex post violation



        Peugh, 569 U.S. at 545, 550 (finding an ex post facto violation when the defendant’s
       14

minimum guideline sentence, under new Guidelines, increased by 40 months compared to
the Guidelines effective when the crime was committed).
       15   734 F.3d 600, 608–09 (6th Cir. 2013).
       16   The Sixth Circuit takes a different tack, demarcating an analytical line not
recognized by the Supreme Court or any other circuit. Compare id. (distinguishing between
permissible clarifying amendment and impermissible substantive amendments) with United
States v. Kiekow, 872 F.3d 236, 248 (5th Cir. 2017) (“The [Peugh] decision . . . establishes that
where the wrong Guidelines are consulted and those Guidelines expose a defendant to greater
punishment, the district court violates the Ex Post Facto Clause.”) and Godoy, 890 F.3d at
541 (“Godoy’s total offense level under the 2015 Guidelines is the same as under the 2016
Guidelines, making the district court’s use of the 2016 Guidelines trouble-free under the Ex
Post Facto Clause.”). But see United States v. Adams, 545 F. App’x 659, 661 (9th Cir. 2013)
(“Separately, ‘there can be no ex post facto problem if an amendment to the Guidelines merely
clarifies its existing substance as opposed to changing its substance.’ ” (citing United States
v. Johns, 5 F.3d 1267, 1269 (9th Cir .1993)).
       17   Huff, 734 F.3d at 603.
       18   Id.
       19   Id. at 609.
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occurs when “a defendant is sentenced under Guidelines promulgated after he
committed his criminal acts and the new version provides a higher applicable
Guidelines sentencing range than the version in place at the time of the
offense.” 20
       The Sixth Circuit agreed, 21 but not before drawing a distinction that no
other circuit has drawn. 22 It stated that, under Peugh, “clarifying amendments
may be applied retroactively” because this application doesn’t “increase . . . the
Guidelines range applicable to a defendant”—it just clarifies “the Guidelines
range that always was applicable.” 23 The Sixth Circuit reasoned that Peugh
created a two-step inquiry: (1) did the applied Guidelines retroactively increase
the defendant’s punishment such that the relevant amendment was
impermissibly substantive, or (2) did the applied Guidelines, as modified by
the amendment, permissibly “clarif[y] what the Commission deems the
guidelines to have already meant”? 24 We respectfully disagree and decline to
adopt this two-step inquiry as we believe it is inconsistent with Peugh and with
our (and other circuits’) post-Peugh precedent. 25


       20   Peugh, 569 U.S. at 533.
       21   Huff, 734 F.3d at 609.
       22   See infra note 32.
       23 Huff, 734 F.3d at 608–09 (citation omitted). The Sixth Circuit relied primarily on
its own precedent for this assertion, assuming that it was consistent with Peugh. Id. at 608
(citing United States v. Geerken, 506 F.3d 461, 465 (6th Cir.2007). It also derivatively relied
on a pre-Peugh Seventh Circuit case, United States v. Hartz, 296 F.3d 595, 599 (7th Cir.2002).
Huff, 734 F.3d at 609. However, post-Peugh, the Seventh Circuit hasn’t linked arms with the
Sixth Circuit and instead adopts our (and every other circuits’) view. United States v. Rabiu,
721 F.3d 467, 471 (7th Cir. 2013); see infra note 32.
       24   Huff, 734 F.3d at 608–09.
       25 The Huff court’s test to determine whether an amendment was substantive or
clarifying—“(1) how the Sentencing Commission characterized the amendment; (2) whether
the amendment changes the language of the guideline itself or changes only the commentary
for the guideline; and (3) whether the amendment resolves an ambiguity in the original
wording of the guideline”—incorporates considerations beyond those embraced by the
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       In Peugh, the 1998 Guidelines applied when the defendant committed
his crime, and the 2009 Guidelines applied when he was sentenced. 26 Applying
the 2009 Guidelines, the district court’s minimum guideline sentence was 40
months longer than it would have been under the 1998 Guidelines. 27 Peugh
was sentenced to 70 months, and the Seventh Circuit affirmed. 28 On appeal,
the Supreme Court found “[s]uch a retrospective increase in the measure of
punishment raises clear ex post facto concerns.” 29 It reversed, announcing “a
rule that retrospective application of a higher Guidelines range violates the Ex
Post Facto Clause.” 30
       Our circuit has faithfully applied Peugh. For example, in Urbina-Fuentes
we stated, “[i]t is settled that the Ex Post Facto Clause is violated when a
sentencing court uses a Guidelines edition generating a higher sentencing
range than the range of the edition in effect on the date of the defendant’s
criminal conduct.” 31 That’s the boiled-down inquiry—short, sweet, simple. 32


Supreme Court or our sister circuits post-Peugh. Id. at 609 (internal quotation marks and
citation omitted); Peugh, 569 U.S. at 533–34 (considering only whether an amendment
increased the measure of punishment applicable to a defendant when determining if applying
that amendment violated the Ex Post Facto clause).
       26   Peugh, 569 U.S. at 533–34.
       27Id. at 545 (“When Peugh committed his crime, the recommended sentence was 30
to 37 months. When he was sentenced, it was 70 to 87 months.”).
       28   Id. at 530.
       29   Id. at 545.
       30 Id. at 549–50 (reasoning that applying the amended Guidelines increased “the
measure of punishment by altering the substantive ‘formula’ used to calculate the applicable
sentencing range . . . creat[ing] a ‘significant risk’ of a higher sentence for Peugh, . . . and
offend[ing]” the Ex Post Facto Clause (citations omitted)). Peugh’s major debate was whether
the Sentencing Guidelines were too “advisory” to implicate the Ex Post Facto Clause; a
controversy irrelevant to the discrete issue here. Id. at 552 (Thomas, J. dissenting).
       31   900 F.3d 687, 692 (5th Cir. 2018) (citing Peugh, 569 U.S. at 544).
       32Our sister circuits, Sixth Circuit excluded, unflinchingly agree. United States v.
Mehanna, 735 F.3d 32, 68 (1st Cir. 2013); United States v. Guerrero, 910 F.3d 72, 75 (2d Cir.
2018); United States v. Thompson, 825 F.3d 198, 206 (3d Cir. 2016); Whiteside v. United
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       Turning to Martinez-Ovalle’s sentence, the district court’s application of
the 2018 Guidelines violated the Ex Post Facto Clause. 33 Under the 2016
Guidelines, those in effect when Martinez-Ovalle’s crime concluded, his
sentencing range would have been 18–24 months. Under the 2018 Guidelines,
his sentencing range jumped to 30–37 months. Because Martinez-Ovalle was
“ultimately sentenced” under the 2018 sentencing range, the “disparity”
between the 2016 Guidelines range and the 2018 Guidelines range “means that
[he] was sentenced in violation of the Ex Post Facto Clause.” 34




States, 748 F.3d 541, 550 (4th Cir. 2014), overruled on other grounds, 775 F.3d 180 (4th Cir.
2014); Rabiu, 721 F.3d at 470; United States v. Roberts, 747 F.3d 990, 991 (8th Cir. 2014);
United States v. Waters, 771 F.3d 679, 680 (9th Cir. 2014); United States v. Kurtz, 819 F.3d
1230, 1235 (10th Cir. 2016); United States v. Elbeblawy, 899 F.3d 925, 939 (11th Cir. 2018),
cert. denied, 139 S. Ct. 1322 (2019); United States v. Head, 817 F.3d 354, 358–60 (D.C. Cir.
2016).
       33  Cf. Urbina-Fuentes, 900 F.3d at 696. As the Eighth Circuit notes, the district court
could have applied the Guidelines effective when Martinez-Ovalle committed his crime and
then “considered the current Guidelines in determining the final sentence.” Roberts, 747 F.3d
at 991–92 (citing Peugh, 569 U.S. at 549 (“[S]entencing courts [are] free to give careful
consideration to the current version of the Guidelines . . . . The newer Guidelines [will be]
one of many reasons a district court might give for deviating from the older Guidelines . . .
.”)). Although this is instructive for future cases, it doesn’t apply here as the district court did
the unconstitutional inverse—applying the 2018 Guidelines while considering the 2016
Guidelines.
       34 Urbina-Fuentes, 900 F.3d at 696. The Government briefly argues that any error in
Martinez-Ovalle’s sentence was harmless. 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.”
Peugh, 569 U.S. at 550 n. 8. During sentencing, the judge stated he would consider the “equity
of the [ex post facto] issue” and “selected [23] months because that is the term of
imprisonment . . . appropriate without regard to the [ex post facto] issue . . . [or the] Motion
for Downward Departure or Variance.” Because these statements are open to multiple
interpretations and don’t “clear[ly]” show the judge would have imposed the 23-month
sentence regardless of which Guidelines applied, we cannot deem the error harmless. Peugh,
569 U.S. at 550 n. 8; cf. United States v. Arojojoye, 753 F.3d 729, 737 (7th Cir. 2014) (finding
harmless error under the following: “The sentence that I impose is . . . the appropriate
sentence in this case regardless of whether the guideline range is that being argued by the
government or that being argued by the defense”).
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                                  III
     For these reasons, we VACATE the district court’s sentencing order and
REMAND for resentencing in accordance with this opinion.
