United States v. Jose Cervantes-Arteaga ( 2020 )


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  •      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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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).
    2
    

Document Info

Docket Number: 20-10036

Filed Date: 8/21/2020

Precedential Status: Non-Precedential

Modified Date: 8/21/2020