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

                                                 FILED
                                                                             April 1, 2009
                                     No. 08-40680
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

HECTOR AGUIRRE-PINEDA

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:08-CR-122-1


Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Hector Aguirre-Pineda appeals from his conviction of being found illegally
in the United States following deportation in violation of 8 U.S.C. § 1326(a) and
(b)(2). He contends that the 16-level adjustment to his offense level due to his
1999 conviction of harboring aliens violated the Ex Post Facto Clause because
that same 1999 conviction resulted in a smaller adjustment to the offense level
for a 2000 conviction of being found illegally in the United States following
deportation.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 08-40680

        The Ex Post Facto Clause forbids Congress from enacting a law that
“‘imposes a punishment for an act which was not punishable at the time it was
committed; or imposes additional punishment to that then prescribed.’” Weaver
v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. 277,
325–26 (1866)). In most instances, the Sentencing Guidelines in effect at the
time of conviction apply.       However, the Guidelines provide that if their
application would violate the Ex Post Facto Clause, the court must use the
Guidelines in effect on the date the offense of conviction was committed.
§ 1B1.11(b)(1). For the Sentencing Guidelines to apply ex post facto, they must
apply to events occurring before their enactment and must disadvantage the
offender affected by their application. See Wallace v. Quarterman, 516 F.3d 351,
354 (5th Cir. 2008); see also Miller v. Florida, 482 U.S. 423, 430 (1987).
        The relevant conviction for ex post facto purposes is the instant conviction
of being found illegally in the United States on February 20, 2008, not any of
Aguirre-Pineda’s prior convictions. See Perkins v. Cabana, 794 F.2d 168, 169
(5th Cir. 1986); see also United States v. Heredia-Cruz, 328 F.3d 1283, 1290 (10th
Cir. 2003). Any change in how a prior conviction is used to establish an offense
level during the time in between one conviction and another thus would not
violate the Ex Post Facto Clause. See Perkins, 794 F.2d at 169 (“No person is
exposed to the increased penalty unless he commits a felony after the
enactment.”). There was no Ex Post Facto Clause violation in Aguirre-Pineda’s
case.
        AFFIRMED.




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