     Case: 11-60477     Document: 00511740137         Page: 1     Date Filed: 01/30/2012




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

                                                                            FILED
                                                                         January 30, 2012
                                     No. 11-60477
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RAMON GONZALEZ-CHAVEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:11-CR-21-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Ramon Gonzalez-Chavez challenges the sentence imposed following his
July 2011 guilty-plea conviction for illegal reentry into the United States
following removal subsequent to an aggravated-felony conviction. Gonzalez
contends the district court’s refusal to apply a January 2011 proposed, but not
yet enacted, amendment to Sentencing Guideline § 2L1.2(b) rendered his
sentence unreasonable. The amendment, which was enacted in November 2011,
reduced the 16-level enhancement to 12 levels, when the age of the prior

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60477    Document: 00511740137       Page: 2   Date Filed: 01/30/2012

                                   No. 11-60477

conviction results in no criminal-history points being accorded to it. Again,
Gonzalez was sentenced several months earlier.
      Analysis of the sentence is bifurcated. Gall v. United States, 552 U.S. 38,
51 (2007).    First examined is whether the district court committed any
procedural errors, “such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence”. Id. Under this first
step, application of the Guidelines is reviewed de novo; factual findings, for clear
error. E.g., United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir.
2009). If the district court’s decision is procedurally sound, the substantive
reasonableness of the sentence is then considered in the light of the § 3553(a)
factors. Id. Substantive reasonableness is reviewed for abuse of discretion, and
within-Guidelines sentences enjoy a presumption of reasonableness. Id.
      “A sentencing court must apply the version of the sentencing guidelines
effective at the time of sentencing unless application of that version would
violate the Ex Post Facto Clause of the Constitution.”            United States v.
Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir. 2007) (citation and internal
quotation marks omitted). See also U.S.S.G. § 1B1.11(a). “Such a violation
occurs when application of the Guidelines in effect at sentencing results in a
harsher penalty than would application of the Guidelines in effect when the
offense was committed.” Rodarte-Vasquez, 488 F.3d at 322. That, of course, is
not the situation here. In short, Gonzalez has not shown a procedural error.
      Regarding the substantive reasonableness of the sentence, “the staleness
of a prior conviction used in the proper calculation of a guidelines-range sentence
does not render a sentence substantively unreasonable”, nor does it “destroy the
presumption of reasonableness that attaches to such sentences”. United States
v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011). Further, Gonzalez cites no
authority for his contention that the district court’s refusal to consider the effect

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                              No. 11-60477

of the then-pending amendment rendered his sentence substantively
unreasonable.
     AFFIRMED.




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