     Case: 11-51278       Document: 00512172339         Page: 1     Date Filed: 03/12/2013




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

                                                                            FILED
                                                                          March 12, 2013

                                       No. 11-51278                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee
v.

JESUS MARIA MUNOZ-GARCIA,

                                                  Defendant – Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:11-CR-139-1


Before JOLLY, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
       Jesus Maria Munoz-Garcia pled guilty to Count One of the indictment
charging him with a violation of 8 U.S.C. §§ 1326(a) and (b)(2) after he was found
in the United States without authorization and previously had been deported.
Relying on the 2011 Sentencing Guidelines, the district court added a 16-level
enhancement to Munoz-Garcia’s advisory guidelines range based on his prior
Texas convictions for sexual assault, and sentenced him to 46 months in prison.
Citing the Ex Post Facto Clause, Munoz-Garcia argues that the district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51278

erred in using the 2011 guidelines because his Texas convictions were not crimes
of violence under the 2005 guidelines, which were in effect when he first
reentered the United States without authorization. He further contends that his
Texas convictions were more than fifteen-years old at the time of his 2011 arrest
and thus outside the applicable time frame provided by U.S.S.G. § 4A1.2(e)(1).
Finding no grounds to vacate or modify his sentence, we AFFIRM.
                                              I.
       Munoz-Garcia was granted permanent resident status in January 1980
and was a lawful resident in the United States until his Texas criminal
convictions in 1991. In May 1989, he was arrested in Tarrant County, Texas and
charged with two counts of second degree felony sexual assault.1 He was
convicted on both counts in January 1991 and sentenced to concurrent five-year
terms of imprisonment. Despite being released from prison on May 15, 1995, he
was not deported until on or about February 18, 2005.
       Although he had been deported, Munoz-Garcia was found to be in the
United States without authorization in April 2011, when he was arrested on
public intoxication charges. Following his arrest, he admitted to Immigration
and Customs Enforcement that he originally had returned in March 2005, but
had escaped detection until his 2011 arrest. Munoz-Garcia pled guilty to
violating section 1326 and was sentenced to 46 months of imprisonment in
December 2011.
       The Presentence Investigation Report (“PSR”) assessed Munoz-Garcia four
criminal history points and recommended a 16-level sentencing enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii) due to his 1991 sexual assault convictions.


       1
        The PSR does not identify the Texas statute Munoz-Garcia was convicted of violating,
but identification of the statute is not necessary to resolve this case. Munoz-Garcia argues
only that his prior convictions should not be considered due to their age, and that they were
not crimes of violence under our prior precedent interpreting section 2L1.2(b)(1)(A)(ii) before
the 2008 Sentencing Guidelines Amendments.

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                                  No. 11-51278

Munoz-Garcia properly objected that the 1991 convictions were outside the
applicable time period established by section 4A1.2(e)(1), and that their use to
enhance his sentence would violate the Ex Post Facto Clause. The district court
overruled the ex post facto objection, finding that use of the 2011 guidelines was
proper, because illegal reentry is a continuing offense and the amendment at
issue was a clarifying amendment rather than a substantive change. The court
also overruled his section 4A1.2(e)(1) objection, finding that the relevant fifteen-
year period was the span between the imposition of the sentence for the 1991
convictions and Munoz-Garcia’s unauthorized return to the United States in
March 2005. Munoz-Garcia timely appealed.
                                        II.
      Claims of procedural error in the district court’s application of the
Sentencing Guidelines are reviewed de novo. United States v. Bonilla, 524 F.3d
647, 651 (5th Cir. 2008). Whether a particular prior conviction may be used to
adjust an offense level also is subject to de novo review. United States v.
Osborne, 68 F.3d 94, 100 (5th Cir. 1995).
                                        III.
      We first address Munoz-Garcia’s argument that he should not have been
assessed criminal history points or a 16-level enhancement because his 1991
sexual assault convictions occurred more than fifteen years prior to his
commission of the instant offense. Section 4A1.2 of the Sentencing Guidelines
establishes the general procedure for computing criminal history. Section
4A1.2(e)(1) provides the applicable time period and states:
      Any prior sentence of imprisonment exceeding one year and one
      month that was imposed within fifteen years of the defendant’s
      commencement of the instant offense is counted. Also count any
      prior sentence of imprisonment exceeding one year and one month,
      whenever imposed, that resulted in the defendant being
      incarcerated during any part of such fifteen-year period.


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                                       No. 11-51278

Thus, under section 4A1.2(e)(1), Munoz-Garcia’s Texas convictions were properly
counted if his section 1326 offense commenced within fifteen years of his release
from incarceration on May 15, 1995. See U.S.S.G. § 4A1.2(k)(2) (2011); see also
United States v. Arnold, 213 F.3d 894, 896 (5th Cir. 2000).
       Although Munoz-Garcia argues that he did not commit a section 1326
offense until he was arrested on April 8, 2011, we previously have held that
section 1326 is a continuing offense, which begins when the deported alien
illegally reenters the United States. See United States v. Santana-Castellano,
74 F.3d 593, 597 (5th Cir. 1996). Here, Munoz-Garcia reentered the United
States without authorization in March 2005, less than fifteen years after he was
released from incarceration. His March 2005 illegal reentry violated section
1326, and it is irrelevant under section 4A1.2(e)(1) that his violation continued
until he was found in the country without authorization at the time of his April
2011 arrest. See Santana-Castellano, 74 F.3d at 597. The district court did not
err in calculating Munoz-Garcia’s criminal history points or in assessing a 16-
level sentencing enhancement based on section 4A1.2(e)(1).2
                                             IV.
       We next address whether the district court’s use of the 2011 guidelines, as
opposed to the 2005 guidelines, violated the Ex Post Facto Clause. Munoz-
Garcia relies on our pre-2008 caselaw, which held that convictions under the
Texas sexual assault statute were not necessarily “forcible sex offenses” under
section 2L1.2(b)(1)(A)(ii). See United States v. Luciano-Rodriguez, 442 F.3d 320,
322 (5th Cir. 2006). The 2008 amendments made this line of cases “inapplicable


       2
         In his brief, Munoz-Garcia suggests that the March 2005 date of his illegal reentry
was merely an allegation and not a fact because it does not appear in the factual basis for the
guilty plea. During sentencing, however, there was an extended discussion over the March
2005 reentry and the exact statements made by Munoz-Garcia to immigration officials. It is
clear that the district court found that Munoz-Garcia illegally reentered in March 2005, and
such a finding is not clearly erroneous.

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to sentences calculated under the revised version of [section 2L1.2(b)(1)(A)(ii)].”
United States v. Rodriguez-Juarez, 631 F.3d 192, 194 (5th Cir. 2011). Munoz-
Garcia thus contends that the use of the 2011 guidelines as opposed to the 2005
guidelines was an ex post facto violation because the 2005 guidelines would not
have imposed the 16-level enhancement.
       In most cases, we apply the Sentencing Guidelines in effect at the time of
the conviction. U.S.S.G. §§ 1B1.11(a), (b)(1); see also United States v. Armstead,
114 F.3d 504, 507 (5th Cir. 1997). But, if the current version would result in an
ex post facto violation, we instead use the guidelines in effect on the date the
offense was committed. § 1B1.11(b)(1); see also Armstead, 114 F.3d at 507.3 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. (4 Wall.) 277,
325-26 (1867)) (internal quotation marks omitted). Two elements are required
“for a criminal or penal law to be ex post facto: it must be retrospective, that is,
it must apply to events occurring before its enactment, and it must disadvantage
the offender affected by it.” Id. at 29; see also United States v. Caulfield, 634
F.3d 281, 283 (5th Cir. 2011).
       A change in how prior convictions are used to establish an offense level
does not constitute an ex post facto violation. Perkins v. Cabana, 794 F.2d 168,
169 (5th Cir. 1986) (“No person is exposed to the increased penalty unless he
commits a felony after the enactment.”). Munoz-Garcia’s section 1326 conviction

       3
          We have also held that, “Amendments to the guidelines and their commentary
intended only to clarify, rather than effect substantive changes, may be considered even if not
effective at the time of the commission of the offense or at the time of sentencing.” United
States v. Solis, 675 F.3d 795, 797 (5th Cir. 2012). The commentary accompanying the relevant
Amendment states, “First, the amendment clarifies the scope of the term ‘forcible sex offenses’
as that term is used in the definition of ‘crime of violence’ in §2L1.2.” U.S.S.G. app. c., vol. 3,
amend. 722, at 302.

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thus is the relevant conviction for ex post facto analysis, not his Texas sexual
assault convictions. See Gryger v. Burke, 334 U.S. 728, 732 (1948); see also
Perkins, 794 F.2d at 169. As we noted previously, section 1326 is a continuing
offense, which is committed at three discrete points in time: (1) “when one
illegally enters the United States;” (2) “attempts to illegally enter the United
States;” or (3) “when a deported alien is found at any time in the United States.”
United States v. Gonzales, 988 F.2d 16, 18 (5th Cir. 1993). The calculation of
Munoz-Garcia’s offense level using the 2011 guidelines was proper if his section
1326 conviction “occurred after the enactment” of the 2008 amendments. United
States v. Saenz-Forero, 27 F.3d 1016, 1020 (5th Cir. 1994). Here, Munoz-Garcia
pled guilty to being found in the United States without authorization on April
8, 2011 in violation of section 1326. His offense clearly took place after the 2008
amendments were enacted, and we find that no ex post facto violation occurred.
       We note, however, the effect that section 1326’s status as a continuing
offense has on this case. Munoz-Garcia initially violated section 1326 by illegally
reentering the United States in March 2005. In most cases, this would be the
obvious date for determining when his offense was committed for ex post facto
analysis. See Saenz-Forero, 27 F.3d at 1020. Munoz-Garcia, however, escaped
detection at the time of his unauthorized reentry. Under section 1326, his
offense continued until he was found in the United States without authorization
on April 8, 2011, when he was arrested for public intoxication. See Santana-
Castellano, 74 F.3d at 598. The district court properly used the 2011 guidelines,
which were the guidelines in effect at the time of Munoz-Garcia’s conviction.4

       4
         In recent decisions, we addressed arguments similar to that made by Munoz-Garcia,
albeit under plain error review. See United States v. Marban-Calderon, 631 F.3d 210, 211-12
(5th Cir. 2011); United States v. Castillo-Estevez, 597 F.3d 238, 241 (5th Cir. 2010). Both cases
declined to resolve “whether ex post facto claims arising from the application of evolving
sentencing guidelines are viable after Booker.” Castillo-Estevez, 597 F.3d at 241; see also
Marban-Calderon, 631 F.3d at 211-12. We need not resolve the issue here because the
continuing nature of the section 1326 offense supports the sentence imposed in this case.

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                                 No. 11-51278

                                       V.
      It would be an untenable result to allow Munoz-Garcia to disclaim his
initial illegal reentry date of March 2005 in order to render his prior sexual
assault convictions untimely under section 4A1.2(e)(1); doing so would allow him
to reap the reward of remaining undetected until the applicable time period
expired. Furthermore, Munoz-Garcia continued to violate section 1326 until he
was found illegally in the United States in April 2011.        Using the 2011
guidelines thus did not constitute an ex post facto violation. The sentence
imposed by the district court therefore is
                                                                   AFFIRMED.




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