     Case: 17-11387      Document: 00514790127         Page: 1    Date Filed: 01/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                    No. 17-11387                             FILED
                                  Summary Calendar                    January 10, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PEDRO MARTINEZ-NEGRETE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-98-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Pedro Martinez-Negrete appeals the 60-month sentence imposed
following his guilty-plea conviction for illegal reentry after deportation in
violation of 8 U.S.C. § 1326. Martinez-Negrete argues that the district court
violated the Ex Post Facto Clause by applying the 2016 Guidelines Manual
because the 2015 Guidelines Manual, which was in effect at the time he was
found unlawfully present in the United States, would have resulted in a lower


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11387

sentencing guidelines range. See Peugh v. United States, 569 U.S. 530, 533,
537-38 (2013). The Government argues that there is no plain error because it
is not clear that Martinez-Negrete did not qualify for an aggravated felony
enhancement under the 2015 Guidelines, which would result in the same
guideline range as that applied by the district court under the 2016 Guidelines.
      “Although the sentencing guidelines are now advisory, [an ex post facto]
violation occurs when the application of the Guidelines in effect at sentencing
results in a harsher penalty than would application of the Guidelines in effect
when the offense was committed.” United States v. Myers, 772 F.3d 213, 219
(5th Cir. 2014) (internal quotation marks and citation omitted).        Because
Martinez-Negrete did not argue this issue in the district court, our review of
this issue is limited to plain error. See Puckett v. United States, 556 U.S. 129,
135 (2009). On plain error review, “[a] defendant need not show that the
specific factual and legal scenario has been addressed but must at least show
error in the straightforward applications of case law.” United States v. Vargas-
Soto, 700 F.3d 180, 182 (5th Cir. 2012) (internal quotation marks and citation
omitted). An error is not clear or obvious if it is subject to reasonable dispute
or requires the extension of precedent. Puckett, 556 U.S. at 135; Vargas-Soto,
700 F.3d at 182.
      Martinez-Negrete’s 2016 Texas conviction for evading arrest does not
qualify as an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C) (2015) because
this conviction did not precede a prior removal. However, Martinez-Negrete
fails to show that it is clear that his Utah forgery conviction does not qualify
as an aggravated felony. UTAH CODE ANN. § 76-6-501 (1995). Accordingly,
because it is not clear that his sentencing range under the 2015 Guidelines
would be lower than the range under the 2016 Guidelines applied by the
district court, Martinez-Negrete has not shown that the district court’s



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                                No. 17-11387

application of the 2016 Guidelines Manual amounted to a plainly erroneous
violation the Ex Post Facto Clause of the United States Constitution.
See Puckett, 556 U.S. at 135; Myers, 772 F.3d at 219.
      The judgment of the district court is AFFIRMED.




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