United States v. Reyna-Aragon

992 F.3d 381

UNITED STATES of America, Plaintiff—Appellee,

v.Joel REYNA-ARAGON, Defendant—Appellant.

No. 20-10071

United States Court of Appeals, Fifth Circuit.

FILED March 26, 2021

Brian W. Portugal, Leigha Amy Simonton, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff—Appellee.

James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Amarillo, TX, Rachel Maureen Taft, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant—Appellant.

Before Elrod, Willett, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

Joel Reyna-Aragon pleaded guilty to illegal reentry after removal from the United States in violation of 8 U.S.C. § 1326(a) and (b)(1). Applying the 2018 Guidelines, the district court sentenced him within the Guidelines range to 60 months of imprisonment. He now appeals his sentence, arguing that the district court committed ex post facto error by sentencing him pursuant to the 2018 Guidelines (those in effect when he was sentenced), rather than the more lenient 2016 Guidelines (those in effect when he committed his offense). He also argues that the district court erred under the Fifth Amendment's Due Process Clause by considering a bare arrest record at sentencing. We AFFIRM.

I.

Reyna-Aragon, a native and citizen of Mexico, relocated to the United States as a child. He was granted legal permanent resident status on March 28, 2001, but subsequent criminal activity rendered him deportable. In April 2001, he pleaded guilty in Texas state court to felony sexual assault of a child under 17 ("child sex conviction") and was sentenced to five years of deferred-adjudication probation. In July 2001, he was arrested in Texas on a separate sexual assault charge ("sexual assault arrest"), which ultimately was "no billed." Reyna-Aragon was ordered removed from the United States to Mexico in February 2004.

Shortly after Reyna-Aragon was removed, he reentered the United States. In May 2004, a Texas state court revoked his probation for the child sex conviction and imposed a two-year prison sentence. In August 2005, after his sentence expired, he was ordered removed to Mexico for the second time. Over the next several years, he reentered the United States at least twice more and sustained Texas state court convictions for failure to register as a sex offender, failure to identify himself to a law enforcement officer, and driving while intoxicated ("DWI").

In May 2019, Reyna-Aragon was indicted in the Northern District of Texas for illegally reentering the United States after removal in violation of 8 U.S.C. § 1326(a) and (b)(1). He pleaded guilty to the charge without a plea agreement. In advance of Reyna-Aragon's January 2020 sentencing, a probation officer prepared a presentence report ("PSR"). The probation officer determined that Reyna-Aragon's illegal reentry offense concluded on January 28, 2018, while the 2016 Guidelines were still effective. The probation officer initially applied the 2016 Guidelines in the PSR, reasoning that use of the 2018 Guidelines (those in effect at sentencing) would violate the Constitution's Ex Post Facto Clause. Under the 2016 Guidelines, Reyna-Aragon received a total offense level of 17, including a four-level § 2L1.2(b)(2)(D) enhancement for his felony child sex conviction, and a Guidelines range of 37–46 months of imprisonment.

The Government objected to the probation officer's use of the 2016 Guidelines, arguing that application of the 2018 Guidelines was required and would not result in an ex post facto violation. The probation officer agreed with the Government and issued a revised PSR that applied the 2018 Guidelines and dismissed all previous ex post facto concerns. Under the 2018 Guidelines, Reyna-Aragon received a total offense level of 21, including an eight-level § 2L1.2(b)(2)(B) enhancement for his felony child sex conviction, and a Guidelines range of 57–71 months of imprisonment.

Reyna-Aragon objected to the revised PSR, arguing that the Ex Post Facto Clause barred retroactive application of the 2018 Guidelines, because it yielded a more onerous sentencing range than the 2016 Guidelines in effect at the time of his illegal reentry offense. He contended that the district court was required to apply the 2016 Guidelines. At issue was the § 2L1.2(b)(2) enhancement. Under the 2018 Guidelines, Reyna-Aragon received an eight-level § 2L1.2(b)(2)(B) enhancement because, before his first removal, he engaged in conduct resulting in a felony conviction for which he ultimately received a two-year prison sentence.¹ But under the 2016 Guidelines, Reyna-Aragon would not have received the § 2L1.2(b)(2)(B) enhancement because, before his first removal, the probation on his felony conviction had not yet been revoked, and he had not yet received a prison sentence.² Instead, he would only have received a four-level § 2L1.2(b)(2)(D) enhancement.³ Reyna-Aragon's objection was overruled by the district court, which adopted the revised PSR and applied the 2018 Guidelines at sentencing.

In arguing for a "midpoint to higher" sentence within the 2018 Guidelines range (57–71 months), the Government contended that Reyna-Aragon posed a danger to the safety of the community, citing his state court convictions and two prior removals. The Government further noted Reyna-Aragon's sexual assault arrest, stating that "it was no billed, but it was deemed serious enough that I think his community supervision was extended."

After hearing from the parties, the district court stated,

I think that the prior [child sex conviction] is—you know, it may have been 20 years ago, but it's very serious. And then he has another one that he got arrested for. ... I know he was adjudicated guilty [of the child sex offense]. And then, you know ... he had two years to do. So it is a serious offense.

...

And then you have the failure to register as a sex offender, which is serious; he's not following his obligations. And he got in trouble for that. He got convicted of a crime for that [and] failure to identify, same time. And then a DWI, which he was involved in a crash. So all that is very serious. And we have another sexual assault arrest, not a prosecution, but, nonetheless, an arrest in 2001. So we have all those serious crimes, and he has been here twice.

So I think really for the safety of the community, to promote respect for the law and to provide just punishment and all the other [ 18 U.S.C. § 3553(a) ] factors, that 60 months is right. 60 months is not the very bottom, but it's at the bottom of the range, and it will do for me. 60 months is not too much, not more than it should be to carry out the purposes of our sentencing statutes.

After Reyna-Aragon reiterated his ex post facto objection, the district court continued,

I want to say—and I don't ever say this. But I would have given him 60 months if the ex post facto law had been in place or not, because I think [the child sex conviction] is a serious enough offense. And it was not that long ago, 20 years, but it's still a serious offense, so I would have done it anyway.

The district court issued a final judgment sentencing Reyna-Aragon to 60 months of imprisonment.

Reyna-Aragon timely appealed. Relying on United States v. Martinez-Ovalle , 956 F.3d 289 (5th Cir. 2020), he argues that the district court erred by applying the 2018 Guidelines in effect at sentencing, because the Ex Post Facto Clause required application of the more lenient 2016 Guidelines in effect at the time of his illegal reentry offense. The Government concedes the ex post facto error but contends that this error was harmless, because the district court stated that it would have imposed a 60-month sentence notwithstanding any ex post facto error. Reyna-Aragon additionally argues that the district court erred under the Due Process Clause of the Fifth Amendment by relying on a bare arrest record of his sexual assault arrest at sentencing.

II.

This court reviews the district court's interpretation and application of the Sentencing Guidelines de novo. Martinez-Ovalle , 956 F.3d at 292. Although "[t]here is no dispute but that a district court commits procedural error by improperly calculating the [G]uidelines range," reversal is unwarranted if the error was harmless, "that is[,] the error did not affect the district court's selection of the sentence imposed." United States v. Richardson , 676 F.3d 491, 511 (5th Cir. 2012) (internal quotation marks and citation omitted). "The party seeking to uphold the sentence"—here, the Government—has the burden of demonstrating the error's harmlessness. United States v. Garcia-Figueroa , 753 F.3d 179, 192 (5th Cir. 2014).

III.

A. Ex Post Facto Sentencing Error

We are not bound by the Government's concession of an ex post facto sentencing error and give the issue independent review. See United States v. Hope , 545 F.3d 293, 295 (5th Cir. 2008). Generally, a district court must apply the version of the Sentencing Guidelines in effect at the time of sentencing. United States v. Kimler , 167 F.3d 889, 893 (5th Cir. 1999). However, when application of the Guidelines effective at sentencing generates a higher sentencing range than application of the Guidelines effective at the time of the defendant's offense, "the Ex Post Facto Clause obligates the district court to apply the older, more lenient Guidelines." Martinez-Ovalle , 956 F.3d at 292 & n.13 (citing U.S. CONST. art I, § 9, cl. 3 ("No ... ex post facto Law shall be passed.")).

The parties agree that the district court committed ex post facto error under Martinez-Ovalle . Indeed, the facts of Martinez-Ovalle are nearly identical to the present case. Reyna-Aragon and the Martinez-Ovalle defendant both sustained state court felony convictions for which they initially received probation. Id . at 291. Both individuals subsequently were removed from the United States for the...