United States v. Reyna-Aragon, 992 F.3d 381

Reyna-Aragon, a Mexican national and lawful permanent resident, had a 2001 Texas felony sexual‑assault conviction (deferred adjudication/probation), a separate sexual‑assault arrest that was no‑billed, multiple later Texas convictions, and multiple removals and reentries to the U.S.
His illegal‑reentry offense concluded on January 28, 2018 (while the 2016 Guidelines were still effective); he pleaded guilty in federal court in 2019 and was sentenced in January 2020 (when the 2018 Guidelines were in effect).
Under the 2016 Guidelines he would have received a 4‑level §2L1.2(b)(2)(D) enhancement and a 37–46 month range; under the 2018 Guidelines he received an 8‑level §2L1.2(b)(2)(B) enhancement and a 57–71 month range because the 2018 amendment counted the later revocation/sentence.
The probation officer initially applied the 2016 Guidelines, revised the PSR to apply the 2018 Guidelines after the Government objected, and the district court adopted the 2018 Guidelines and sentenced Reyna‑Aragon to 60 months.
Reyna‑Aragon appealed, arguing (1) the 2018 Guidelines’ application violated the Ex Post Facto Clause and (2) the district court violated due process by relying on a bare arrest record (the no‑billed 2001 sexual‑assault arrest).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether applying the 2018 Guidelines at sentencing (instead of the 2016 Guidelines in effect at the time of the offense) violated the Ex Post Facto Clause	Gov’t: 2018 Guidelines applied and any ex post facto error is harmless because the court said it would impose the same 60‑month sentence regardless	Reyna‑Aragon: Ex Post Facto Clause requires the more lenient 2016 Guidelines because 2018 produced a higher, more onerous range	Court: Applying the 2018 Guidelines was an ex post facto error (per Martinez‑Ovalle), but the error was harmless because the district court plainly stated it would have imposed the same 60‑month sentence based on independent §3553(a) factors
Whether the district court violated due process by relying on a bare arrest record (the no‑billed sexual‑assault arrest) at sentencing	Gov’t: PSR included the criminal‑complaint allegations (victim identity and specific conduct), so the record was not a bare arrest and was sufficiently reliable	Reyna‑Aragon: The no‑billed arrest is a bare arrest record and reliance on it violated due process	Court: No plain error; PSR contained allegations sufficient to avoid characterization as a bare arrest, and any consideration of the arrest did not affect substantial rights given other convictions and conduct relied upon

United States v. Martinez‑Ovalle, 956 F.3d 289 (5th Cir. 2020) (ex post facto rule requires applying older, more lenient Guidelines when newer Guidelines increase the range)
United States v. Kimler, 167 F.3d 889 (5th Cir. 1999) (generally district court applies Guidelines in effect at sentencing)
United States v. Franco‑Galvan, 864 F.3d 338 (5th Cir. 2017) (2016 §2L1.2(b)(2) interpreted to require revocation/sentence before first removal)
Molina‑Martinez v. United States, 136 S. Ct. 1338 (2016) (discussion of when an incorrect Guidelines range shows a reasonable probability of a different outcome)
United States v. Ibarra‑Luna, 628 F.3d 712 (5th Cir. 2010) (two‑part test for harmlessness of Guidelines‑calculation errors)
United States v. Martinez‑Romero, 817 F.3d 917 (5th Cir. 2016) (example where sentence was influenced by erroneous Guidelines range)
United States v. Castro‑Alfonso, 841 F.3d 292 (5th Cir. 2016) (harmlessness where district court plainly stated it would impose same sentence even if enhancement was in error)
United States v. Harris, 702 F.3d 226 (5th Cir. 2012) (defines "bare arrest record" and PSR reliability standards)
United States v. Fields, 932 F.3d 316 (5th Cir. 2019) (a grand‑jury no‑bill does not, by itself, render PSR recitation unreliable)
Puckett v. United States, 556 U.S. 129 (2009) (plain‑error review standard)