Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
UNITED STATES of America, Plaintiff-Appellee v. Alejandro Padilla MONTANO, Defendant-Appellant
Alejandro Padilla Montano appeals the sentence imposed after he pleaded guilty to illegal reentry after a prior deportation. Citing Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), he argues that the district court violated the Ex Post Facto Clause by applying the 2016 Sentencing Guidelines in determining his sentencing guidelines range because the 2014 Sentencing Guidelines, which were in effect at the time he was illegally found in the United States, would have resulted in a lower guidelines range.
Because Montano raises the argument for the first time on appeal, we review it for plain error, which requires him to show an error that is clear or obvious–rather than subject to reasonable dispute–and affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he makes that showing, this court has the discretion to correct the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks, brackets and citation omitted).
While this appeal was pending, we held that the Texas offense of burglary is not a generic burglary offense. United States v. Herrold, 883 F.3d 517, 520-37, 541-42 (5th Cir. 2018) (en banc), petition for cert. filed (Apr. 18, 2018) (No. 17-1445) and (May 21, 2018) (No. 17-9127). Therefore, under the 2014 Guidelines, Montano would not be subject to a 16-level enhancement of his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014) based on his prior burglary conviction. See id.; United States v. Godoy, 890 F.3d 531, 536 n.16 (5th Cir. 2018). Thus, his guidelines range under the 2014 Guidelines would have been less than his guidelines range under the 2016 Guidelines. Herrold is the controlling law in this circuit at this time and, therefore, the district court committed reversible error in applying the 2016 Guidelines in violation of the Ex Post Facto Clause. See Peugh, 569 U.S. at 532–33, 133 S.Ct. 2072; see also United States v. Broussard, 669 F.3d 537, 553-55 (5th Cir. 2012) (holding that the law at the time of appeal controls).
Accordingly, the sentence is VACATED, and the case is REMANDED to the district court for resentencing.
FOOTNOTES
PER CURIAM:* FN* 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.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: No. 17-20767
Decided: March 14, 2019
Court: United States Court of Appeals, Fifth Circuit.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)