     Case: 20-10036      Document: 00515536089         Page: 1    Date Filed: 08/21/2020




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

                                                                            FILED
                                                                        August 21, 2020
                                    No. 20-10036
                                  Summary Calendar                       Lyle W. Cayce
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE GUSTAVO CERVANTES-ARTEAGA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:18-CR-613-1


Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Jose Gustavo Cervantes-Arteaga was convicted of illegal reentry into the
United States after a previous removal and sentenced to 24 months of
imprisonment and a one-year term of supervised release. Relying upon our
recent decision in United States v. Martinez-Ovalle, 956 F.3d 289, 292–95 (5th
Cir. 2020), Cervantes-Arteaga renews his preserved argument that the district
court committed a reversible ex post facto error when it applied an eight-level


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 20-10036    Document: 00515536089    Page: 2   Date Filed: 08/21/2020


                                No. 20-10036

§ 2L1.2(b)(2) enhancement under the 2018 Sentencing Guidelines, including
Amendment 809, rather than a four-level enhancement that would have
applied under the 2016 version of the Guidelines.
      We review the district court’s interpretation and application of the
Guidelines de novo. Martinez-Ovalle, 956 F.3d at 292. Absent ex post facto
concerns, a sentencing court should apply the Guidelines in effect at the time
of sentencing. United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).
However, 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).
      In light of Martinez-Ovalle, and as correctly conceded by the
Government, application of the 2018 Guidelines to Cervantes-Arteaga’s
sentence violated the Ex Post Facto Clause. See U.S.S.G. App. C (Amendment
809); Martinez-Ovalle, 956 F.3d at 291-95. Given that the Government does
not advance an argument that the error was harmless, and given that no such
argument is apparent from the district court’s statements at sentencing,
Cervantes-Arteaga’s conviction is AFFIRMED, his sentence is VACATED, and
the case is REMANDED for resentencing consistent with this opinion. See
Martinez-Ovalle, 956 F.3d at 291-95 & n.34; United States v. Guzman-Rendon,
864 F.3d 409, 411 (5th Cir. 2017).




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