     Case: 17-10452      Document: 00514735451         Page: 1    Date Filed: 11/26/2018




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

                                    No. 17-10452
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                   November 26, 2018
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

RENE ORLANDO MEDINA-MENDOZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-398-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Rene Orlando Medina-Mendoza appeals the sentence imposed after he
pleaded guilty to being in the United States illegally after deportation. Citing
Peugh v. United States, 569 U.S. 530 (2013), he argues that the district court
violated the Ex Post Facto Clause by applying the 2016 Sentencing Guidelines
in determining his sentencing guidelines range because the 2015 Sentencing
Guidelines, which were in effect at the time he was found unlawfully in the
United States, would have resulted in a lower sentencing guidelines range.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10452     Document: 00514735451        Page: 2   Date Filed: 11/26/2018


                                    No. 17-10452

      Because Medina-Mendoza did not argue in the district court that he was
subject to an ex post facto violation, we review for plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009).           Under that standard, Medina-
Mendoza must show (1) a forfeited error (2) that is clear or obvious, and
(3) that affects his substantial rights. Id. If he does so, we have the discretion
to correct the error but only if (4) it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id.
      While this appeal was pending, we held that the Texas offense of
burglary is not a generic burglary offense. United States v. Herrold, 883 F.3d
517, 520-37, 541-42 (5th Cir. 2018) (en banc), petition for cert. filed (Apr. 18,
2018) (No. 17-1445) and (May 21, 2018) (No. 17-9127). Therefore, under the
2015 Guidelines, Medina-Mendoza would not be subject to a 16-level
enhancement of his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
(2015) based on his prior burglary conviction. See id.; United States v. Ortega-
Gonzaga, 490 F.3d 393, 394-95 (5th Cir. 2007).           Thus, Medina-Mendoza’s
guidelines range under the 2015 Guidelines would have been less than his
guidelines range under the 2016 Guidelines. The Government’s argument that
Herrold is not controlling is without merit because the “plainness” of an error
is based on the settled law at the time of appeal. See Henderson v. United
States, 568 U.S. 266, 273 (2013). Herrold is the controlling law in this circuit
and, therefore, the district court committed clear or obvious error in applying
the Guidelines in violation of the Ex Post Facto Clause. See Peugh, 569 U.S.
at 533; Puckett, 556 U.S. at 135.
      Further, the error affected Medina-Mendoza’s substantial rights because
the correct sentencing guidelines range is significantly lower than the range
determined by the district court, and we exercise our discretion to correct the
plain error. See Puckett, 556 U.S. at 135.



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    Case: 17-10452     Document: 00514735451     Page: 3   Date Filed: 11/26/2018


                                  No. 17-10452

      Accordingly, the sentence is VACATED and the case is REMANDED to
the district court for resentencing.




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