956 F.3d 289
5th Cir.2020Background
- Martinez-Ovalle, an undocumented noncitizen, had Texas felony convictions in 2009, was placed on probation, and deported; his probation was later revoked and a two‑year sentence imposed in 2015.
- He illegally reentered the U.S. in 2016, was removed to federal custody from state jail, and pleaded guilty to illegal reentry.
- The probation officer determined Martinez‑Ovalle’s offense concluded in 2018 (so the 2016 Guidelines would govern), but the PSR applied the 2018 Guidelines after Amendment 809, which treated post‑revocation prison terms as counting for §2L1.2(b)(2).
- Under the 2018 Guidelines (with an 8‑level §2L1.2(b)(2)(B) enhancement) his range was 30–37 months; under the 2016 Guidelines (4‑level §2L1.2(b)(2)(D)) his range would have been 18–24 months.
- The district court overruled the ex post facto objection, applied the 2018 Guidelines, but varied downward and sentenced him to an effective 23 months.
- On appeal the Fifth Circuit held applying the 2018 Guidelines violated the Ex Post Facto Clause, vacated the sentence, and remanded for resentencing under the correct Guidelines framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying post‑offense (2018) Guidelines that increase the sentencing range violates the Ex Post Facto Clause | Martinez‑Ovalle: Ex Post Facto Clause requires applying 2016 Guidelines in effect when offense concluded | Government: Court may apply clarifying amendments (per Huff) or apply Guidelines effective at sentencing | Court: Applying the 2018 Guidelines that produced a higher range violated the Ex Post Facto Clause; vacated and remanded |
| Whether Amendment 809 was merely a “clarifying” amendment that can be applied retroactively | Martinez‑Ovalle: Amendment raised punishment and cannot be applied retroactively | Government: Huff supports retroactive application of clarifying amendments | Court: Declined Sixth Circuit’s Huff approach; followed Peugh and other circuits—substantive increases cannot be applied retroactively |
| Whether the error was harmless because judge said sentence was chosen without regard to ex post facto issue | Martinez‑Ovalle: Judge’s statements ambiguous; not clearly the same under older Guidelines | Government: Any error was harmless because judge would have imposed same sentence | Court: Statements were ambiguous; error not harmless under Peugh; remand required |
| Whether a court may consider current Guidelines when varying under older Guidelines | Martinez‑Ovalle: N/A (relief sought to enforce older Guidelines) | Government: District courts can consider newer Guidelines for variance purposes | Court: A court may consider newer Guidelines as a reason to vary, but it cannot apply the newer Guidelines to calculate the applicable range; here court unconstitutionally applied newer Guidelines |
Key Cases Cited
- Peugh v. United States, 569 U.S. 530 (2013) (retrospective application of a higher Guidelines range violates the Ex Post Facto Clause)
- Huff v. United States, 734 F.3d 600 (6th Cir. 2013) (holding some clarifying amendments may be applied retroactively)
- Urbina‑Fuentes v. United States, 900 F.3d 687 (5th Cir. 2018) (reiterating that using Guidelines that generate a higher range than those in effect at the time of the offense violates the Ex Post Facto Clause)
- United States v. Godoy, 890 F.3d 531 (5th Cir. 2018) (reviewing Guidelines interpretation de novo and discussing ex post facto analysis)
- United States v. Franco‑Galvan, 864 F.3d 338 (5th Cir. 2017) (pre‑Amendment 809 interpretation of §2L1.2(b)(2) regarding when revoked probation and later sentence count)