     Case: 17-10657      Document: 00514716011         Page: 1    Date Filed: 11/08/2018




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

                                    No. 17-10657                              FILED
                                  Summary Calendar                     November 8, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HUMBERTO RODRIGUEZ-LOZANO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-17-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Humberto Rodriguez-Lozano appeals the 48-month above-Guidelines
sentence imposed in connection with his conviction for illegal reentry after
deportation. Rodriguez-Lozano argues that the district court violated the Ex
Post Facto Clause in applying the 2016 Guidelines Manual because the 2015
Guidelines, which were in effect at the time he was found unlawfully present
in the United States, would have resulted in a lower sentencing 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10657    Document: 00514716011     Page: 2   Date Filed: 11/08/2018


                                 No. 17-10657

However, he concedes that his argument may be foreclosed by our recent
decision in United States v. Godoy, 890 F.3d 531, 536-41 (5th Cir. 2018).
      The district court must apply the version of the Sentencing Guidelines
effective at the time of sentencing unless doing so would violate the Ex Post
Facto Clause of the United States Constitution. United States v. Rodarte-
Vasquez, 488 F.3d 316, 322 (5th Cir. 2007); see U.S.S.G. § 1B1.11(a), (b)(1).
“Although the sentencing guidelines are now advisory, [an ex post facto]
violation occurs when the 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.” United States v. Myers, 772 F.3d 213, 219
(5th Cir. 2014) (internal quotation marks and citation omitted).
      Because Rodriguez-Lozano did not argue in the district court that
application of the 2016 Guidelines was an ex post facto violation, review of this
issue is limited to plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009).   Though Rodriguez-Lozano’s prior burglary conviction no longer
qualifies as a crime of violence for purposes of U.S.S.G § 2L1.2 (b)(1)(A)(ii)
(2015), see United States v. Herrold, 883 F.3d 517, 520-23, 539-41 (5th Cir.
2018) (en banc), petitions for cert. filed (Apr. 18, 2018) (No. 17-1445) and (May
21, 2018) (No.17-9127), it qualifies as an aggravated felony for purposes of
§ 2L1.2(b)(1)(C) (2015), see Godoy, 890 F.3d at 536-41. In the instant case, the
Guidelines range is the same under either the 2015 or the 2016 Guidelines.
Thus, there was no Ex Post Facto violation in the application of the 2016
Guidelines and no plain error. See Godoy, 890 F.3d at 541; Puckett, 556 U.S.
at 135.
      The judgment of the district court is AFFIRMED.




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