     Case: 17-20767      Document: 00514873848         Page: 1    Date Filed: 03/14/2019




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

                                    No. 17-20767                                  FILED
                                  Summary Calendar                          March 14, 2019
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALEJANDRO PADILLA MONTANO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-335-1


Before BENAVIDES, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Alejandro Padilla Montano appeals the sentence imposed after he
pleaded guilty to illegal reentry after a prior 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 2014 Sentencing




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20767     Document: 00514873848     Page: 2   Date Filed: 03/14/2019


                                  No. 17-20767

Guidelines, which were in effect at the time he was illegally found in the United
States, would have resulted in a lower guidelines range.
      Because Montano raises the argument for the first time on appeal, we
review it for plain error, which requires him to show an error that is clear or
obvious–rather than subject to reasonable dispute–and affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes
that showing, this court has the discretion to correct the error only if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks, brackets and citation omitted).
      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
2014 Guidelines, Montano 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) (2014) based on his
prior burglary conviction. See id.; United States v. Godoy, 890 F.3d 531, 536
n.16 (5th Cir. 2018). Thus, his guidelines range under the 2014 Guidelines
would have been less than his guidelines range under the 2016 Guidelines.
Herrold is the controlling law in this circuit at this time and, therefore, the
district court committed reversible error in applying the 2016 Guidelines in
violation of the Ex Post Facto Clause. See Peugh, 569 U.S. at 532–33; see also
United States v. Broussard, 669 F.3d 537, 553-55 (5th Cir. 2012) (holding that
the law at the time of appeal controls).
      Accordingly, the sentence is VACATED, and the case is REMANDED to
the district court for resentencing.




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