     Case: 16-10274   Document: 00514000113        Page: 1   Date Filed: 05/19/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 16-10274                            FILED
                                                                        May 19, 2017

UNITED STATES OF AMERICA,
                                                                       Lyle W. Cayce
                                                                            Clerk

             Plaintiff - Appellee

v.

JESUS ENRIQUE-ASCENCIO,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Jesus Enrique-Ascencio pleaded guilty to one count of illegally
reentering the country after a prior removal. He appeals the 16-level sentence
enhancement he received under Section 2L1.2 of the federal Sentencing
Guidelines for a prior drug trafficking conviction, contending that this
conviction was not “a drug trafficking offense for which the sentence imposed
exceeded 13 months.” In the alternative, Enrique-Ascencio asks for remand so
that the district court may resentence him under a post-sentencing Guidelines
amendment that would have reduced his total offense level. For the reasons
that follow, we AFFIRM.
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                                No. 16-10274
                           I.    BACKGROUND
      On November 24, 2015, Enrique-Ascencio pleaded guilty to one count of
illegally reentering the country after a prior removal in violation of 8 U.S.C.
§ 1326(a) and (b)(2). The probation officer who prepared his presentence report
(“PSR”) recommended that his base offense level be increased by 16 levels
under Section 2L1.2(b)(1)(A), based on a prior felony drug trafficking offense
“for which the sentence imposed exceeded 13 months.” The recommended
enhancement was based on a 2006 California felony conviction for possession
for sale of cocaine. According to the PSR, Enrique-Ascencio was sentenced for
this offense to 120 days in “the work release program in jail,” followed by 36
months of probation. In April 2008, a probation revocation hearing was held
after Enrique-Ascencio violated the terms of his probation and he was
sentenced to an additional 365 days in the county jail.
      The PSR calculated a cumulative sentence of 485 days of imprisonment,
triggering the Section 2L1.2 16-level enhancement.        As proof of the 2006
conviction and sentence, the PSR appended a plea document for the offense. It
indicated that Enrique-Ascencio desired to enter a guilty plea to the offense
with the understanding that the district attorney had agreed to a sentence of
“120 CJ W/E’s. Plea contingent on no prior felony convictions.”
      Enrique-Ascencio objected to the enhancement, arguing that he had not
sustained a drug trafficking offense for which the sentence imposed was
greater than 13 months. He claimed that serving his sentence of 120 days
through a work release program did not constitute a “sentence of
imprisonment” under Section 2L1.2(b)(1)(A)(i) and 2L1.2 cmt. n.1(B)(vii),
because he worked each day outside of a jail facility. Enrique-Ascencio did not
dispute that his 365-day sentence of imprisonment for his subsequent parole
violation counts toward his “sentence imposed” for purposes of the
enhancement. But by his calculation, his sentence was 365 days in total,
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                                       No. 16-10274
warranting only a 12-level enhancement. Enrique-Ascencio also noted that the
Government had not provided a certified copy of the judgment supporting the
enhancement and reserved his right to object on this additional basis if the
Government did not produce a certified copy by the date of sentencing. 1
      The district court overruled Enrique-Ascencio’s objections and adopted
the findings in the PSR without change. The court sentenced Enrique-Ascencio
at the bottom of the Guideline range of 57 to 71 months and credited him for a
month of administrative custody, resulting in a term of imprisonment of 56
months. It imposed no term of supervised release. This appeal followed.
                                 II.    DISCUSSION
      Enrique-Ascencio raises two issues on appeal. First, he argues that the
district court’s application of the 16-level enhancement was error because it
was not established that the sentence imposed for the offense, at least some of
which he served through work release, exceeded 13 months. Second, Enrique-
Ascencio urges remand so that the district court may resentence him under a
Guidelines amendment that became effective after his sentencing. We address
each issue in turn.
      A. Work Release as a Sentence of Imprisonment
      Enrique-Ascencio appeals the district court’s rejection of his objection to
the PSR that his time spent in a work release program should not be counted
toward his “sentence imposed” for purposes of determining the applicability of
Section 2L1.2’s 16-level enhancement. Because Enrique-Ascencio preserved
this objection, “we review the district court’s interpretation and application of
the sentencing guidelines de novo and its findings of fact for clear error.”


      1  The Government has been unable to obtain a certified copy of the judgment to date.
Enrique-Ascencio argues that the documents supporting the enhancement are inadequate to
establish that his sentence of imprisonment exceeded 13 months. As discussed infra Part
II.A.2, even assuming that reliance on the documents is error, such error is harmless and
does not warrant reversal.
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                                    No. 16-10274
United States v. Martinez-Lugo, 782 F.3d 198, 201 (5th Cir. 2015) (alteration
omitted). “We review a district court’s conclusion that a prior state conviction
constitutes a drug trafficking offense [for which the sentence imposed exceeded
13 months] de novo.” Id.
             1. Section 2L1.2(b)(1)(A)(i)
      We have not yet addressed whether a sentence involving work release
qualifies as a “sentence of imprisonment” under the Guidelines. Here, we need
only determine whether the particular California work release program
identified by Enrique-Ascencio so qualifies. Federal sentencing guidelines are
analyzed according to the rules of statutory interpretation. United States v.
Mendez-Villa, 346 F.3d 568, 570 (5th Cir. 2003) (per curiam). “The text of the
guideline is the starting point in the analysis; the commentary is considered
authoritative. We use ‘a plain-meaning approach’ in our interpretation of the
Sentencing Guidelines.” Id. (internal citations omitted).
      We begin with the text. At the time Enrique-Ascencio was sentenced,
Section 2L1.2(b)(1)(A)(i) provided that the offense level for unlawfully entering
the United States shall be increased by 16 if the defendant previously was
deported after “a conviction for a felony that . . . is a drug trafficking offense
for which the sentence imposed exceeded 13 months.” 2 The commentary to
Section 2L1.2 indicates that “sentence imposed” has the same meaning as the
term “sentence of imprisonment” found in Section 4A1.2. U.S.S.G. § 2L1.2 cmt.
n.1(B)(vii) (referring to § 4A1.2(b) and cmt. n.2). That Guideline, in turn,
defines “sentence of imprisonment” as a “sentence of incarceration and refers
to the maximum sentence imposed.” § 4A.1.2(b)(1). The commentary further



      2  Effective November 1, 2016, the Sentencing Commission amended Section 2L1.2 so
that it no longer includes such a 16-level enhancement. See U.S.S.G. App. C, Amend. 802
(http://www.ussc.gov/sites/default/files/pdf/guidelines-
manual/2016/APPENDIX_C_Supplement.pdf#page=148).
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                                  No. 16-10274
clarifies that “[t]o qualify as a sentence of imprisonment, the defendant must
have actually served a period of imprisonment on such sentence (or, if the
defendant escaped, would have served time).” § 4A1.2 cmt. n.2. But “criminal
history points are based on the sentence pronounced, not the length of time
actually served.” Id.
      Enrique-Ascencio posits that serving a jail sentence through work
release does not constitute a “sentence of imprisonment” because work release
is not actual incarceration. And because “the defendant must have actually
served a period of imprisonment” in order for his sentence to qualify as a
“sentence of imprisonment,” § 4A1.2 cmt. n.2, the Government must prove that
Enrique-Ascencio actually served at least one day of his 120-day sentence in a
penal institution.
      The parties agree that the work release program referenced in Enrique-
Ascencio’s plea agreement refers to California’s county jail work release
program, authorized under California Penal Code Section 4024.2(a). That
statute permits the sheriff “to offer a voluntary program under which any
person committed to the [county jail] facility may participate in a work release
program . . . in which one day of participation will be in lieu of one day of
confinement.”   Id.     Individual participation in the program is within the
discretion of the sheriff. Id. § 4024.2(d). Furthermore, if the person fails to
comply with the conditions of the program, “the sheriff may immediately
retake the person into custody to serve the balance of his or her sentence.” Id.
§ 4024.2(c).
      Although we have not previously decided the issue of whether a work
release program like this one qualifies as a ‘sentence of imprisonment’, we do
not write on a clean slate. In United States v. Schomburg, 929 F.2d 505 (9th
Cir. 1991), the Ninth Circuit determined that a jail sentence served through a
similar California diversionary work release program is nonetheless a
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                                 No. 16-10274
“sentence of imprisonment” under the Guidelines.           In Schomburg, the
defendant was sentenced to 60 days in county jail, which the sentencing court
recommended he serve through a weekend work project. Id. at 506–07. The
Schomburg court rejected the defendant’s argument that “because he was
never in custody on the 60-day sentence, it should not be counted as a sentence
of imprisonment.”    Id. at 507.    The court reasoned that the defendant’s
eligibility for the weekend work project was ultimately at the discretion of the
sheriff so the sentencing court’s recommendation of the work project was not
binding. Id. “Thus, the sentence, as pronounced by the court at the outset,
was a sentence of imprisonment subject to alteration at the Sheriff’s
discretion.” Id.
      Enrique-Ascencio’s participation in the work release program is
similarly at the discretion of the county sheriff.        See Cal. Penal Code
§§ 4024.2(c) and (d). Indeed, treatment of section 4024.2 by California courts
supports this understanding. The California Supreme Court has observed that
“[s]ubdivision (a) of section 4024.2 states that the program may only be offered
to someone already committed to the correctional facility[,]” and the statute
further “provides that a person is eligible for the program at the discretion of
the administrative official in charge of the program[.]” Ryan v. Comm’n on
Judicial Performance, 754 P.2d 724, 735–36, as modified on denial of reh’g
(Cal. 1988). Thus, a judge does “not have authority under Penal Code section
4024.2 to order [a defendant] into the work-release program.” Id. at 736.
Importantly, the court explained, “[a] judge has the power to commit a person
to a correctional facility, but then the administrative official in charge of the
facility has the discretionary power to offer work release if the person is
deemed eligible under the rules of the program.” Id. (emphasis added). Courts
since appear to have embraced this interpretation of the work release statute.
See, e.g., United States v. Benz, 472 F.3d 657, 659 (9th Cir. 2006) (“California
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                                No. 16-10274
state judges do not have the discretion to impose work release under
§ 4024.2(a).”); People v. Dubose, No. B275409, 2017 WL 1365026, at *2 (Cal.
Ct. App. Apr. 12, 2017) (unpublished) (“By section 4024.2’s explicit terms,
oversight and administration of a work release program to satisfy an imposed
term of confinement under that section falls under the authority of the county
board of supervisors and the county sheriff or appropriate designee—not the
trial court.”).
      These decisions bolster the Ninth Circuit’s analysis in Schomburg, which
we have cited with approval in the past. In United States v. Valdez-Valdez,
143 F.3d 196, 202 n.41 (5th Cir. 1998), we noted that although the defendant
had not argued that his work release was not a sentence of imprisonment, such
an argument would likely fail, citing Schomburg.
      Then, in United States v. Brooks, 166 F.3d 723, 727 (5th Cir. 1999), we
cited Schomburg as persuasive authority in determining that the defendant’s
boot camp sentence was a sentence of imprisonment for purposes of calculating
his criminal history score under Section 4A1.1(b). Enrique-Ascencio argues
that Brooks supports his position because we deemed “physical confinement
[to be] a key distinction between sentences of imprisonment and other types of
sentences,” leading to our conclusion that boot camp was a sentence of
imprisonment because the defendant was not free to leave. Id. at 726–27
(quoting United States v. Vanderlaan, 921 F.2d 257, 259 (10th Cir. 1990)). By
contrast, Enrique-Ascencio argues that the work release program in which he
participated does not require any physical confinement; the participant may
simply “show up to work and then go home.” In this sense, he contends that
work release is similar to home detention, which we have held is not a sentence
of imprisonment because it does not involve confinement in a penal institution.
See United States v. Gordon, 346 F.3d 135, 138–39 (5th Cir. 2003).


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                                 No. 16-10274
      Brooks and Gordon do not avail Enrique-Ascencio.          Both decisions
accepted Schomburg’s logic that, despite the lack of custodial confinement, the
sheriff’s discretion to alter the sentence to include imprisonment renders work
release a sentence of imprisonment.       Indeed, Gordon distinguished work
release from home detention, as “there [was] no indication in the record that
[the defendant’s] sentence of house arrest involved any discretion by law
enforcement.” 346 F.3d at 138.
      We are persuaded by Schomburg’s reasoning and adopt it here. The text
of the Guidelines further supports this interpretation. Importantly, a sentence
of imprisonment is based on the “sentence pronounced” by the court, and not
“the length of time actually served.” § 4A1.2 cmt. n.2. The court sentenced
Enrique-Ascencio to 120 days in the county jail with eligibility to serve his
sentence through a work release program. His ultimate participation in the
program in lieu of incarceration was at the discretion of law enforcement. Just
as the length of time actually served has no impact on whether a defendant’s
sentence is a sentence of imprisonment, so too is the manner in which the
sheriff ultimately determines the defendant will serve the jail sentence
pronounced by the court.
      Enrique-Ascencio’s remaining arguments are similarly unpersuasive. In
response to his contention that the Government must prove he “actually served
a period of imprisonment,” i.e., a period of incarceration, on his sentence,
§ 4A1.2 cmt. n.2, the Government asserts that “period of imprisonment” has a
more limited meaning, as evidenced by the commentary’s reference to Sections
4A1.2(a)(3) and (b)(2). Those provisions address the suspension of sentences,
which the Guidelines treat differently. For example, any part of a sentence of
imprisonment that was suspended does not count toward the “sentence of
imprisonment.” § 4A1.2(b)(2). Therefore, the requirement of actually serving
a period of imprisonment is meant only to carve out sentences that were
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                                  No. 16-10274
initially pronounced as sentences of imprisonment, but were subsequently
judicially suspended. That an escapee is counted as having actually served a
period of imprisonment, see § 4A1.2 cmt. n.2, underscores the point that
judicial suspension of a sentence (which leaves no discretion to law
enforcement), and not actual confinement, is the focus of that clause. We think
this a more reasonable construction of the term because it avoids conflict with
the Guidelines’ emphasis on “the sentence pronounced,” rather than “the
length of time actually served.” See id.
      Enrique-Ascencio also invokes the canon of statutory construction
against surplusage, pointing out that another Guideline, Section 4A1.1, lists
both work release and imprisonment as examples of criminal justice sentences,
suggesting that the two must be distinct.        See § 4A1.1(d) (stating that a
defendant receives two extra criminal history points “if the defendant
committed the instant offense while under any criminal justice sentence,
including probation, parole, supervised release, imprisonment, work release,
or escape status”).      If “imprisonment” were understood to include “work
release,” Enrique-Ascencio argues, the latter would be surplusage. See Ratzlaf
v. United States, 510 U.S. 135, 140–41 (1994). But the surplusage canon
“cannot always be dispositive because (as with most canons) the underlying
proposition is not invariably true. Sometimes drafters do repeat themselves .
. .” Scalia & Garner, Reading Law: The Interpretation of Legal Texts, 176–77
(1st ed. 2012). That canon is inapt in the context of Section 4A1.1, in which
the Commission was trying to account for myriad “jurisdictional variations in
offense   definitions,   sentencing   structures,    and      manner    of   sentence
pronouncement.” § 4A1.1 cmt. background. As the Government explains, it is
more likely that the Commission was especially inclusive in expounding the
meaning of a “criminal justice sentence,” and some redundancy crept in.


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                                No. 16-10274
      Furthermore, the Government points to another Guideline that
mentions work release, Section 5G1.3, which expressly includes work release
within the definition of a “term of imprisonment.” Section 5G1.3 discusses how
sentences are imposed on defendants subject to an undischarged term of
imprisonment and provides that: “[i]f the instant offense was committed while
the defendant was serving a term of imprisonment (including work release,
furlough, or escape status)” the sentence should be imposed consecutively to
the undischarged term of imprisonment. § 5G1.3(a). By the Government’s
reckoning, Sections 4A1.1 and 5G1.3 contain the only two instances of the term
“work release” in the Guidelines. And one of those instances plainly includes
work release in the definition of “a term of imprisonment.” This strongly
suggests that the Commission recognized that work release may be a means of
serving a sentence of imprisonment, rather than a separate status.           By
contrast, the Guidelines treat a sentence of home detention as something other
than a sentence of imprisonment. See Gordon, 346 F.3d at 138–39 (observing
that Sections 5C1.1(c) and 7B1.3(d) distinguish between home detention and
imprisonment).
      Accordingly, we hold that Enrique-Ascencio’s 120-day sentence is a
sentence of imprisonment, regardless of whether he served it in whole or in
part through California’s Section 4024.2 work release program. Therefore,
based on his cumulative 485-day sentence, Enrique-Ascencio was previously
convicted of “a felony . . . drug trafficking offense for which the sentence
imposed   exceeded   13   months,”   warranting    Section   2L1.2’s   16-level
enhancement.
            2. District Court’s Reliance on Non-binding Plea Document
     Enrique-Ascencio also challenges the enhancement on the grounds that
the Government failed to satisfy its burden of proof with competent evidence
of his prior conviction and sentence. Because the PSR appended only a non-
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                                   No. 16-10274
binding plea document as proof of the predicate offense, Enrique-Ascencio
reserved his right to object if the Government did not provide a certified copy
of the judgment by the date of sentencing. At sentencing, the Government had
not yet obtained the document. Enrique-Ascencio notified the district court of
his intent to file an appeal and indicated that, although he did not contest the
fact of the conviction, a certified copy of the judgment would be necessary for
the appellate record. He agreed to a continuance to the imposition of final
judgment to allow the Government time to provide a certified copy, which the
Government agreed to do. Final judgment, however, was entered without such
documents. Some months later, the Government provided the district court
with three additional documents:        (1) the same plea document that was
originally appended to the PSR; (2) the criminal complaint for the 2006 offense;
and (3) a case print of the court minutes relating to the offense. In its brief to
this Court, the Government stated that it was in the process of obtaining a
copy of the judgment from San Bernardino County to supplement the record.
The Government has since represented that for reasons unknown and despite
multiple requests, the clerk’s office in San Bernardino County has not yet
produced the judgment. Nevertheless, the Government maintains that the
documents in the record are sufficient to support the district court’s imposition
of the enhancement.
       “A district court cannot impose a sentence enhancement such as
[§ 2L1.2(b)(1)(A)(i)] unless the government has proven any facts necessary to
support the enhancement by a preponderance of the evidence.” United States
v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). We review the district court’s
factual findings for clear error. Id. A factual finding is not clearly erroneous
if it is “plausible in light of the record as a whole.” Id. “This court will find
clear error only if a review of the record results in a ‘definite and firm conviction
that a mistake has been committed.’” United States v. Lopez-Cano, 516 F.
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                                  No. 16-10274
App’x 350, 352 (5th Cir. 2013) (unpublished) (quoting Rodriguez, 630 F.3d at
380).
        Enrique-Ascencio contends that the “categorical approach” of Taylor v.
United States, 495 U.S. 575 (1990), applies to a sentencing court’s
determinations that a prior offense qualifies as a predicate for a sentence
enhancement. We agree. See, e.g., United States v. Gomez-Alvarez, 781 F.3d
787, 792 (5th Cir. 2015); United States v. Garza-Lopez, 410 F.3d 268, 273 (5th
Cir. 2005). “Under the categorical approach set forth in Taylor v. United
States, a sentencing court looks to the elements of a prior offense, rather than
the facts underlying the conviction, when classifying a prior offense for
sentence enhancement purposes.” Gomez-Alvarez, 781 F.3d at 792. When the
statutory definition of the prior offense does not categorically establish that it
is a qualifying offense for the enhancement, the Supreme Court has, under
certain circumstances, endorsed a “modified” categorical approach, under
which a sentencing court “is permitted to look beyond the fact of conviction and
the statutory definition of the prior offense.” Id. (citing Shepard v. United
States, 544 U.S. 13, 17 (2005)). Under this approach, a court may look to a
limited class of documents, such as a “charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the
trial judge to which the defendant assented.” Shepard, 544 U.S. at 16.
        Proper documents are limited to “conclusive records made or used in
adjudicating guilt.” Id. at 21. This Court has previously determined that
certain documents are not Shepard-approved.          The PSR, standing alone,
cannot establish whether a prior offense qualifies for a sentence enhancement.
United States v. Gutierrez-Ramirez, 405 F.3d 352, 357 (5th Cir. 2005).
Criminal complaints are also inadequate because they do not represent the
final charging document to which a defendant pleaded guilty. Lopez-Cano, 516
F. App’x at 353–54 (explaining that under California criminal procedure, a
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                                 No. 16-10274
felony prosecution commences with a criminal complaint, but is subsequently
replaced by an information or stipulated to be deemed an information). For
the same reason, the plea document appended to the PSR, a declaration by
defendant of intention to plead nolo contendere, is not an acceptable record
because it is not a final written plea agreement between the parties and
approved by the court.     Docket sheets and case summaries also “are not
Shepard-approved documents because they were prepared by court [clerical
staff] not judges.” Id. at 354. As we explained in Gutierrez-Ramirez, such
documents do not have sufficient indicia of reliability “to satisfy the ‘rigorous
standard’ required by Taylor’s modified categorical approach.” 405 F.3d at 358
(citation omitted).
      Enrique-Ascencio asserts that none of the documents in the record
satisfy this standard. Moreover, he claims that consideration of the documents
provided after entry of final judgment would violate his right to be present at
sentencing and right to be heard under due process and Federal Rule of
Criminal Procedure 32. The Government, however, maintains that even if
these documents would not satisfy the Taylor/Shepard standard, we have, in
some cases, condoned the use of non-Shepard documents to establish the fact
of an underlying conviction, as opposed to facts about the underlying
conviction. See, e.g., Lopez-Cano, 516 F. App’x at 354; United States v. Neri-
Hernandes, 504 F.3d 587, 590–92 (5th Cir. 2007). The Government contends
that if such documents are permissible to establish the fact of an underlying
conviction, they are by implication sufficient to establish the fact of an
underlying sentence. The problem is that the Government must prove not only
the fact of Enrique-Ascencio’s sentence, but also facts about the sentence,
namely, whether it provided the remaining one month of imprisonment
necessary to support the Section 2L1.2 enhancement.


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                                  No. 16-10274
      We agree with Enrique-Ascencio that, issues of notice aside, none of the
documents in the record satisfy the reliability standard established by Taylor
and Shepard. In the face of a properly mounted challenge, such documents,
standing alone, cannot serve as a basis for a sentence enhancement. Here,
however, Enrique-Ascencio has never contested the existence of the underlying
offense or his 120-day jail sentence. Therefore, these facts, in view of the record
as a whole, are plausibly “explicit factual finding[s] by the trial judge to which
the defendant assented,” which may be appropriately considered even under
Shepard. See 544 U.S. at 16.
      Even assuming the district court’s reliance on the plea document was
error, the error was harmless. Enrique-Ascencio’s argument is fundamentally
legal in nature. He contends that the possibility that he served his sentence
entirely through work release makes it not a “sentence of imprisonment” for
purposes of the enhancement. In so far as there is any factual dispute, it is
whether the Government has proven with competent evidence that he served
at least one day of his 120-day sentence in custody.           Because Enrique-
Ascencio’s 120-day sentence is a sentence of imprisonment, even if served
entirely through work release, this factual dispute is immaterial. We have
only remanded when resolution of the factual dispute may have had an effect
on the sentence imposed. See, e.g., Gutierrez-Ramirez, 405 F.3d at 359; United
States v. Espinoza-Acuna, 328 F. App’x 918, 919 (5th Cir. 2009) (unpublished).
This is not such a case. Therefore, remand on this issue is not warranted.
      B. Post-Sentencing Guidelines Amendment
      Lastly, Enrique-Ascencio argues that we should remand to the district
court in order to determine whether a lesser sentence is appropriate under an
amendment to the Guidelines that took effect after the date of his sentence.
Enrique-Ascencio was sentenced in March 2016 and, as stated supra in note 2,
the amendment in question took effective on November 1 of that year.
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                                     No. 16-10274
Pursuant to that amendment, Enrique-Ascencio would qualify for at least a
six-level reduction to his offense level, which would give rise to a potential 26-
month reduction in his sentence if he were sentenced at the bottom of the new
range.
      As Enrique-Ascencio concedes, because he did not object to his sentence
on these grounds, we review only for plain error. United States v. Garcia-
Carrillo, 749 F.3d 376, 378 (5th Cir. 2014).                   And Enrique-Ascencio
acknowledges that we addressed this very issue in Garcia-Carrillo and held
that it is not plain error for a district court to fail to consider a non-retroactive
post-sentencing amendment to the Guidelines, even if it might have affected
the sentence imposed by the district court. Id. at 380. He argues, however,
that Garcia-Carrillo must be reconsidered in light of Molina-Martinez v.
United States, 136 S. Ct. 1338 (2016).
      But Molina-Martinez has no bearing on the issue presented here. That
case involved a situation where the district court had incorrectly calculated the
guideline range under the existing Guidelines. Id. at 1341. Although Molina-
Martinez clarifies the application of plain error review to such errors, it says
nothing about applying that standard to non-erroneous sentencing decisions
that might have been affected, had a subsequent Guidelines amendment
controlled. Accordingly, Garcia-Carrillo is dispositive and forecloses Enrique-
Ascencio’s argument.
                              III.    CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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