IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10452

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RENE ORLANDO MEDINA-MENDOZA,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CR-398-1

Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:*

Rene Orlando Medina-Mendoza appeals the sentence imposed after he 

pleaded guilty to being in the United States illegally after deportation. Citing 

Peugh v. United States, 569 U.S. 530 (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 2015 Sentencing 

Guidelines, which were in effect at the time he was found unlawfully in the 

United States, would have resulted in a lower sentencing guidelines range.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 26, 2018

Lyle W. Cayce

Clerk

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No. 17-10452

2

Because Medina-Mendoza did not argue in the district court that he was 

subject to an ex post facto violation, we review for plain error. See Puckett v. 

United States, 556 U.S. 129, 135 (2009). Under that standard, MedinaMendoza must show (1) a forfeited error (2) that is clear or obvious, and 

(3) that affects his substantial rights. Id. If he does so, we have the discretion 

to correct the error but only if (4) it seriously affects the fairness, integrity, or 

public reputation of judicial proceedings. Id.

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 

2015 Guidelines, Medina-Mendoza 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) 

(2015) based on his prior burglary conviction. See id.; United States v. OrtegaGonzaga, 490 F.3d 393, 394-95 (5th Cir. 2007). Thus, Medina-Mendoza’s 

guidelines range under the 2015 Guidelines would have been less than his 

guidelines range under the 2016 Guidelines. The Government’s argument that 

Herrold is not controlling is without merit because the “plainness” of an error 

is based on the settled law at the time of appeal. See Henderson v. United 

States, 568 U.S. 266, 273 (2013). Herrold is the controlling law in this circuit 

and, therefore, the district court committed clear or obvious error in applying 

the Guidelines in violation of the Ex Post Facto Clause. See Peugh, 569 U.S. 

at 533; Puckett, 556 U.S. at 135.

Further, the error affected Medina-Mendoza’s substantial rights because 

the correct sentencing guidelines range is significantly lower than the range 

determined by the district court, and we exercise our discretion to correct the 

plain error. See Puckett, 556 U.S. at 135. 

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No. 17-10452

3

Accordingly, the sentence is VACATED and the case is REMANDED to 

the district court for resentencing.

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