     Case: 17-50741      Document: 00514592800         Page: 1    Date Filed: 08/09/2018




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

                                    No. 17-50741                               FILED
                                  Summary Calendar                        August 9, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE MARTIN MALDONADO-FLORES, also known as Jose Maldonado,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:17-CR-167-1


Before JOLLY, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Jose Martin Maldonado-Flores appeals the 70-month sentence of
imprisonment imposed following his guilty plea for being found unlawfully
present in the United States following deportation. Citing Peugh v. United
States, 569 U.S. 530 (2013), Maldonado-Flores 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 2015 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-50741

Guidelines, that were in effect at the time he was found unlawfully in the
United States, would have resulted in a lower sentencing guidelines range. He
seeks to be resentenced. His unopposed motion to file a corrected reply brief is
GRANTED.
      Because Maldonado-Flores did not argue in the district court that he was
subject to an ex post facto violation, review is for plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009). To satisfy that standard, Maldonado-
Flores must show a (1) forfeited error (2) that is clear or obvious, and (3) that
affects his substantial rights. See id. If he makes such a showing, this court
has the discretion to correct the error but only if (4) it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
      While this appeal was pending, in 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), we held that the Texas offense of burglary is not a generic
burglary offense. Therefore, Maldonado-Flores was not subject to a 16-level
enhancement of his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
(2015) based on his prior burglary conviction. See id.; United States v. Ortega,
490 F.3d 393, 394-95 (5th Cir. 2007). In the absence of this enhancement,
Maldonado-Flores’s sentencing guidelines range under the 2015 Guidelines
would have been less than his sentencing guideline range under the 2016
Guidelines. The Government’s argument that the decision in Herrold is not
controlling is without merit because it is well established that the “plainness”
of an error will be determined based on the settled law at the time of appeal.
See Henderson v. United States, 568 U.S. 266, 273 (2013); Johnson v. United
States, 520 U.S. 461, 468 (1997). Herrold is the controlling law in this circuit
and, therefore, the district court committed clear or obvious error in applying




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                                    No. 17-50741

the Guidelines in violation of the Ex Post Facto Clause. See Peugh, 569 U.S.
at 533; Puckett, 556 U.S. at 135.
      Further, Maldonado-Flores has shown that the error affected his
substantial rights because the correct sentencing guidelines range is
significantly lower than the range determined by the district court.            See
Molina-Martinez v. United States, 136 S. Ct. 1338, 1345, 1347 (2016). Because
the error resulted in a higher guidelines range and outweighs any other
countervailing factors, we exercise our discretion to correct the plain error. See
United States v. Rosales-Mireles, 138 S. Ct. 1897, 1910-11 (2018).
      Accordingly, the sentence is VACATED and the case is REMANDED to
the district court for resentencing. The Government’s motion to stay further
proceedings pending the disposition of several petitions for certiorari,
including in Herrold, is DENIED.




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