     Case: 19-11201      Document: 00515494315         Page: 1    Date Filed: 07/17/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-11201                      United States Court of Appeals

                                  Summary Calendar
                                                                               Fifth Circuit

                                                                             FILED
                                                                         July 17, 2020

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
                                                 Plaintiff-Appellee

v.

OSCAR SEGURA-RESENDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:18-CR-210-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Oscar Segura-Resendez appeals the sentence for his illegal reentry
offense. The reentry occurred on or about November 27, 2017. Using the 2018
Guidelines Manual, the Presentence Report recommended an eight-level
adjustment because, before he was ordered removed for the first time in June
1998, Segura-Resendez sustained a felony conviction for which he was initially
sentenced to 10 years of deferred adjudication probation and subsequently


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 19-11201

sentenced to two years of imprisonment after his probation was revoked. See
U.S.S.G. § 2L1.2(b)(2)(B). Segura-Resendez objected to that enhancement on
ex post facto grounds. He explained that his predeportation conviction would
have resulted in only a four-level adjustment under the 2016 version of § 2L1.2.
The district court overruled the objection and imposed a within-guidelines
term of 77 months of imprisonment.
      Segura-Resendez repeats his objection on appeal. Absent ex post facto
concerns, a sentencing court should apply the Guidelines Manual in effect at
the time of sentencing. United States v. Kimler, 167 F.3d 889, 893 (5th Cir.
1999). But retrospective application of a higher sentencing range under an
amended Sentencing Guidelines violates the Ex Post Facto Clause. Peugh v.
United States, 569 U.S. 530, 541-50 (2013). Therefore, as correctly conceded
by the government, application of the 2018 Guidelines Manual to Segura-
Resendez’s sentence violated the Ex Post Facto Clause. See United States v.
Martinez-Ovalle, 956 F.3d 289, 294-95 (5th Cir. 2020).
      Nevertheless, this error was harmless. See Peugh, 569 U.S. at 550 n.8
(recognizing that an ex post facto violation in applying the Guidelines is
harmless if “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 one”). Although the government did not argue
harmlessness, we may consider the issue sua sponte. See United States v.
Groce, 784 F.3d 291, 296 n.2 (5th Cir. 2015), superseded by regulation on other
grounds as stated in United States v. Halverson, 897 F.3d 645, 651 (5th Cir.
2018). The reason is that a remand is pointless if the district court has made
clear that it would have imposed the same sentence under the “older, more
lenient Guidelines.” Peugh, 569 U.S. at 550 n.8. It did so here, recognizing




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                                No. 19-11201

what the Guidelines range would have been if the court had sustained Segura-
Resendez’s objection (51 to 63 months) and then explaining:
           And even if I had applied the four-level enhancement as
     opposed to the eight-level enhancement, then I would have
     imposed an upward variance. But because of the eight-level
     enhancement, it’s unnecessary to impose any upward variance,
     and I think that the sentence that the Court is going to impose
     takes care of the factors under (a)(2) [of 18 U.S.C. § 3553].
           ...
           So what the Court is saying is this. Whether it imposed the
     four-level enhancement or the eight-level enhancement, the
     sentence that it’s going to impose would be the same.
As a result, the ex post facto error was harmless. United States v. Guzman-
Rendon, 864 F.3d 409, 411 (5th Cir. 2017).
     The judgment is AFFIRMED.




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