1 District Judge of the Western District of Louisiana,

sitting by designation. 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 92-1527

UNITED STATES OF AMERICA Petitioners-Appellee

 versus

JUAN RUBEN GONZALES Defendant-Appellant

 

Appeal from The United States District Court

for The Northern District of Texas

 

(March 29, 1993)

 Before WISDOM and DUHE, Circuit Judges and HAIK,1 District

Judge.

 HAIK, District Judge: 

 Juan Ruben Gonzales, appellant, was charged by indictment with

a violation of 8 U.S.C. Section 1326, Reentry of a Deported Alien.

He pled guilty and was sentenced to eighty-six months in custody,

three years of supervised release, and ordered to pay a mandatory

special assessment fee of $50.00. The District Court sentenced

Gonzales under the guidelines which were in effect at the time he

was sentenced. Gonzales contends that he should have been

sentenced pursuant to the guidelines which were in effect at the

time he reentered the United States. We affirm the District Court.
 

2 The Presentence Report indicates that Gonzales was

convicted of "Unlawful Possession with Intent to Deliver a

controlled Substance" and was sentenced to serve fifteen years. 

2

FACTS

 On August 27, 1979 Gonzales was granted permanent residency

status. In 1989, he was convicted of an aggravated felony2. On

April 24, 1991, as a result of his conviction, he was remanded into

the custody of the Immigration and Naturalization Service and

deported from the United States as an aggravated felon. Gonzales

made a speedy return to the United States. He was back over the

border within hours of his deportation, staying with relatives in

Dallas. He remained there as an illegal alien until he was

discovered and arrested on November 21, 1991.

 The district court enhanced appellant's base offense level by

sixteen levels pursuant to U.S. Sentencing Guidelines Section

2L1.2(b)(2), an amendment to the guidelines which became effective

November 1, 1991. The district court ruled that there was no ex

post facto problem which would entitle Gonzales to be sentenced

under an earlier and more lenient version of the guidelines. 

 

DISCUSSION

 Gonzales argues that the district court should have applied

the guidelines in effect at the time he entered the country rather

than when he was found in the country. An application of the

guidelines prior to the amendment would result in a decrease of

twelve offense levels, and thereby reduce his sentence. 

 Gonzales contends that he violated 8 U.S.C. Section 1326 on
3

April 25, 1991 when he reentered the United States. He claims the

application of the sentencing guidelines in effect on November 1,

1991 for a crime committed on April 25, 1991 constitutes a

violation of the ex post facto clause of the United States

Constitution. 

 The guidelines in effect at the time of sentencing are the

appropriate source for determining a sentence absent an ex post

facto problem. U.S. v. Ainsworth, 932 F.2d 358, 362 (5th Cir.),

cert. denied, _____ U.S. _____, 112 S.Ct. 327, 346 (1991). A

criminal law is ex post facto if it is retrospective and

disadvantages the offender by altering substantial personal rights.

Miller v. Florida, 482 U.S. 423, 430 (1987). 

 We need not decide whether the guidelines as amended are

retrospective because Gonzales committed the offense after November

1, 1991 when the amendment became effective. The clear language in

8 U.S.C. Section 1326(a)(2) provides three separate occasions upon

which a deported alien may commit the offense: 1) when one

illegally enters the United States; 2) attempts to illegally enter

the United States; or 3) when a deported alien is found at any time

in the United States. The plain words of the statute set out

discrete points in time when the crime may be committed. 

 One of the three means of committing the offense outlined in

8 U.S.C. 1326(a)(2) is to be a deported alien found within the

borders of the United States. Gonzales admits that he was

discovered after the effective date of the amendment to the

sentencing guidelines. He was charged by indictment with having
4

illegally entered the United States and having been found as an

illegal alien. He pled guilty to this charge and admitted to the

underlying facts as presented by the government at the time of his

plea. 

 The government's argument that petitioner should be sentenced

under the new version of the guidelines is well founded. There are

no ex post facto consequences. The district court properly applied

the amended version of the guidelines when determining the

appropriate sentence for Gonzales. 

 We AFFIRM the sentence handed down by the district court.