     Case: 16-11549      Document: 00514340687         Page: 1    Date Filed: 02/07/2018




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

                                    No. 16-11549
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                    February 7, 2018
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

MARCO ANTONIO CASTRO-CONTRERAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:16-CR-14-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Marco Antonio Castro-Contreras appeals the 51-
month sentence imposed by the district court following his guilty-plea
conviction for illegal reentry.         Although this sentence falls within the
guidelines range in effect on the date of his sentencing, Castro-Contreras
asserts that the sentence is procedurally and substantively unreasonable




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11549   Document: 00514340687    Page: 2   Date Filed: 02/07/2018


                                  No. 16-11549

because the district court did not consider then-pending amendments to
U.S.S.G. § 2L1.2.
        As Castro-Contreras raises these arguments for the first time on appeal,
we review for plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009). “A sentencing court must apply the version of the sentencing guidelines
effective at the time of sentencing unless application of that version would
violate the Ex Post Facto Clause of the Constitution.” United States v. Rodarte-
Vasquez, 488 F.3d 316, 322 (5th Cir. 2007) (internal quotation marks and
citation omitted); see also U.S.S.G. § 1B1.11(a) (“The court shall use the
Guidelines Manual in effect on the date that the defendant is sentenced.”); 18
U.S.C. § 3553(a)(4)(A)(ii) and (5)(B) (requiring district court to consider
Guidelines and policy statements, and any amendments thereto, that are “in
effect on the date the defendant is sentenced”). Therefore, Castro-Contreras
fails to show that the district court plainly erred by failing to consider
amendments to § 2L1.2 which were not yet in effect. See Puckett, 556 U.S. at
135.
        Castro-Contreras also contends that his sentence violates due process
because his indictment did not allege the prior conviction on which the 8 U.S.C.
§ 1326(b)(2) sentence enhancement was based.           He correctly concedes,
however, that this argument is foreclosed under Almendarez-Torres v. United
States, 523 U.S. 224, 235, 239-47 (1998). See United States v. Pineda-Arellano,
492 F.3d 624, 625-26 (5th Cir. 2007).
        AFFIRMED.




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