United States v. Manuel Ibarra-Rodriguez, 711 F. App'x 288

Defendant Manuel Ibarra-Rodriguez, a previously removed felon, pled guilty to illegal reentry under 8 U.S.C. § 1326(a), (b)(1).
Presentence report documented a long criminal history including domestic violence, driving under the influence, drug possession, identity theft, and prior unlawful reentry.
Sentencing Guidelines advisory range (2015 Manual) was 10–16 months. District court gave notice it was considering an upward departure/variance and mentioned a 2016 Guidelines enhancement in the notice.
At sentencing the court increased Ibarra-Rodriguez’s criminal-history category by one level (to Category IV), then varied upward to offense level 13 and imposed a 30-month sentence—above the advisory range.
Defendant argued (1) procedural error and an ex post facto violation because the court “essentially applied” the 2016 Guidelines enhancement that did not apply, and (2) the sentence was substantively unreasonable for overweighing his criminal history and relying on the inapplicable 2016 Manual.
The Sixth Circuit reviewed for plain error on procedural challenge and for abuse of discretion on substantive challenge and affirmed the sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court procedurally erred or violated the Ex Post Facto Clause by applying an inapplicable 2016 Guidelines enhancement	The court referenced and effectively applied the 2016 Guidelines enhancement, so it used the wrong Guidelines and imposed sentence based on inapplicable law	District court actually used the 2015 Guidelines as the starting point; references to 2016 were comparative and did not affect the Guidelines calculation	No plain error: references to 2016 were explanatory/comparative; the record shows the 2015 Manual was used and the Guidelines were correctly scored
Whether the 30-month above-Guidelines sentence was substantively unreasonable	The court improperly weighed Ibarra-Rodriguez’s history and relied on the inapplicable 2016 Manual, resulting in an excessive sentence	The court expressly considered § 3553(a) factors, specific deterrence, public protection, and recidivism; explained reasons for upward variance	No abuse of discretion: sentence justified by defendant’s extensive recidivism, dangerousness, and prior failure to be deterred by earlier sentence

Peugh v. United States, 133 S. Ct. 2072 (2013) (discussing the requirement that a sentencing court not rely on a Guidelines change as the framework for sentencing in a way that creates an ex post facto problem)
Gall v. United States, 552 U.S. 38 (2007) (appellate review of sentences for abuse of discretion; reasonableness standard)
McCloud v. United States, 730 F.3d 600 (6th Cir. 2013) (failure to apply correct Guidelines generally constitutes plain error)
United States v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009) (upholding above-Guidelines sentence based on significant criminal history and recidivism)
United States v. Solano-Rosales, 781 F.3d 345 (6th Cir. 2015) (affirming upward variance based on prior removals and domestic-violence convictions)