IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10274

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

JESUS ENRIQUE-ASCENCIO, 

 Defendant - Appellant 

Appeal from the United States District Court

for the Northern District of Texas 

Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges. 

JAMES E. GRAVES, JR., Circuit Judge:

Jesus Enrique-Ascencio pleaded guilty to one count of illegally 

reentering the country after a prior removal. He appeals the 16-level sentence 

enhancement he received under Section 2L1.2 of the federal Sentencing 

Guidelines for a prior drug trafficking conviction, contending that this 

conviction was not “a drug trafficking offense for which the sentence imposed 

exceeded 13 months.” In the alternative, Enrique-Ascencio asks for remand so 

that the district court may resentence him under a post-sentencing Guidelines 

amendment that would have reduced his total offense level. For the reasons 

that follow, we AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

May 19, 2017

Lyle W. Cayce

Clerk

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I. BACKGROUND 

On November 24, 2015, Enrique-Ascencio pleaded guilty to one count of 

illegally reentering the country after a prior removal in violation of 8 U.S.C. 

§ 1326(a) and (b)(2). The probation officer who prepared his presentence report 

(“PSR”) recommended that his base offense level be increased by 16 levels 

under Section 2L1.2(b)(1)(A), based on a prior felony drug trafficking offense 

“for which the sentence imposed exceeded 13 months.” The recommended 

enhancement was based on a 2006 California felony conviction for possession 

for sale of cocaine. According to the PSR, Enrique-Ascencio was sentenced for 

this offense to 120 days in “the work release program in jail,” followed by 36

months of probation. In April 2008, a probation revocation hearing was held 

after Enrique-Ascencio violated the terms of his probation and he was 

sentenced to an additional 365 days in the county jail. 

The PSR calculated a cumulative sentence of 485 days of imprisonment, 

triggering the Section 2L1.2 16-level enhancement. As proof of the 2006 

conviction and sentence, the PSR appended a plea document for the offense. It 

indicated that Enrique-Ascencio desired to enter a guilty plea to the offense 

with the understanding that the district attorney had agreed to a sentence of 

“120 CJ W/E’s. Plea contingent on no prior felony convictions.” 

Enrique-Ascencio objected to the enhancement, arguing that he had not 

sustained a drug trafficking offense for which the sentence imposed was 

greater than 13 months. He claimed that serving his sentence of 120 days 

through a work release program did not constitute a “sentence of 

imprisonment” under Section 2L1.2(b)(1)(A)(i) and 2L1.2 cmt. n.1(B)(vii), 

because he worked each day outside of a jail facility. Enrique-Ascencio did not 

dispute that his 365-day sentence of imprisonment for his subsequent parole 

violation counts toward his “sentence imposed” for purposes of the 

enhancement. But by his calculation, his sentence was 365 days in total, 

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warranting only a 12-level enhancement. Enrique-Ascencio also noted that the 

Government had not provided a certified copy of the judgment supporting the 

enhancement and reserved his right to object on this additional basis if the 

Government did not produce a certified copy by the date of sentencing.1

The district court overruled Enrique-Ascencio’s objections and adopted 

the findings in the PSR without change. The court sentenced Enrique-Ascencio 

at the bottom of the Guideline range of 57 to 71 months and credited him for a 

month of administrative custody, resulting in a term of imprisonment of 56 

months. It imposed no term of supervised release. This appeal followed. 

II. DISCUSSION 

Enrique-Ascencio raises two issues on appeal. First, he argues that the 

district court’s application of the 16-level enhancement was error because it 

was not established that the sentence imposed for the offense, at least some of 

which he served through work release, exceeded 13 months. Second, EnriqueAscencio urges remand so that the district court may resentence him under a 

Guidelines amendment that became effective after his sentencing. We address 

each issue in turn. 

A. Work Release as a Sentence of Imprisonment 

Enrique-Ascencio appeals the district court’s rejection of his objection to 

the PSR that his time spent in a work release program should not be counted 

toward his “sentence imposed” for purposes of determining the applicability of 

Section 2L1.2’s 16-level enhancement. Because Enrique-Ascencio preserved 

this objection, “we review the district court’s interpretation and application of 

the sentencing guidelines de novo and its findings of fact for clear error.” 

 

1 The Government has been unable to obtain a certified copy of the judgment to date. 

Enrique-Ascencio argues that the documents supporting the enhancement are inadequate to 

establish that his sentence of imprisonment exceeded 13 months. As discussed infra Part 

II.A.2, even assuming that reliance on the documents is error, such error is harmless and 

does not warrant reversal.

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United States v. Martinez-Lugo, 782 F.3d 198, 201 (5th Cir. 2015) (alteration 

omitted). “We review a district court’s conclusion that a prior state conviction 

constitutes a drug trafficking offense [for which the sentence imposed exceeded 

13 months] de novo.” Id. 

1. Section 2L1.2(b)(1)(A)(i) 

We have not yet addressed whether a sentence involving work release 

qualifies as a “sentence of imprisonment” under the Guidelines. Here, we need 

only determine whether the particular California work release program 

identified by Enrique-Ascencio so qualifies. Federal sentencing guidelines are 

analyzed according to the rules of statutory interpretation. United States v. 

Mendez-Villa, 346 F.3d 568, 570 (5th Cir. 2003) (per curiam). “The text of the 

guideline is the starting point in the analysis; the commentary is considered 

authoritative. We use ‘a plain-meaning approach’ in our interpretation of the 

Sentencing Guidelines.” Id. (internal citations omitted). 

We begin with the text. At the time Enrique-Ascencio was sentenced, 

Section 2L1.2(b)(1)(A)(i) provided that the offense level for unlawfully entering 

the United States shall be increased by 16 if the defendant previously was 

deported after “a conviction for a felony that . . . is a drug trafficking offense 

for which the sentence imposed exceeded 13 months.”2 The commentary to 

Section 2L1.2 indicates that “sentence imposed” has the same meaning as the 

term “sentence of imprisonment” found in Section 4A1.2. U.S.S.G. § 2L1.2 cmt. 

n.1(B)(vii) (referring to § 4A1.2(b) and cmt. n.2). That Guideline, in turn, 

defines “sentence of imprisonment” as a “sentence of incarceration and refers 

to the maximum sentence imposed.” § 4A.1.2(b)(1). The commentary further 

 

2 Effective November 1, 2016, the Sentencing Commission amended Section 2L1.2 so 

that it no longer includes such a 16-level enhancement. See U.S.S.G. App. C, Amend. 802 

(http://www.ussc.gov/sites/default/files/pdf/guidelinesmanual/2016/APPENDIX_C_Supplement.pdf#page=148).

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clarifies that “[t]o qualify as a sentence of imprisonment, the defendant must 

have actually served a period of imprisonment on such sentence (or, if the 

defendant escaped, would have served time).” § 4A1.2 cmt. n.2. But “criminal 

history points are based on the sentence pronounced, not the length of time 

actually served.” Id. 

Enrique-Ascencio posits that serving a jail sentence through work 

release does not constitute a “sentence of imprisonment” because work release 

is not actual incarceration. And because “the defendant must have actually 

served a period of imprisonment” in order for his sentence to qualify as a 

“sentence of imprisonment,” § 4A1.2 cmt. n.2, the Government must prove that 

Enrique-Ascencio actually served at least one day of his 120-day sentence in a 

penal institution. 

The parties agree that the work release program referenced in EnriqueAscencio’s plea agreement refers to California’s county jail work release 

program, authorized under California Penal Code Section 4024.2(a). That 

statute permits the sheriff “to offer a voluntary program under which any 

person committed to the [county jail] facility may participate in a work release 

program . . . in which one day of participation will be in lieu of one day of 

confinement.” Id. Individual participation in the program is within the 

discretion of the sheriff. Id. § 4024.2(d). Furthermore, if the person fails to 

comply with the conditions of the program, “the sheriff may immediately 

retake the person into custody to serve the balance of his or her sentence.” Id.

§ 4024.2(c).

Although we have not previously decided the issue of whether a work 

release program like this one qualifies as a ‘sentence of imprisonment’, we do 

not write on a clean slate. In United States v. Schomburg, 929 F.2d 505 (9th 

Cir. 1991), the Ninth Circuit determined that a jail sentence served through a 

similar California diversionary work release program is nonetheless a 

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“sentence of imprisonment” under the Guidelines. In Schomburg, the 

defendant was sentenced to 60 days in county jail, which the sentencing court 

recommended he serve through a weekend work project. Id. at 506–07. The 

Schomburg court rejected the defendant’s argument that “because he was 

never in custody on the 60-day sentence, it should not be counted as a sentence 

of imprisonment.” Id. at 507. The court reasoned that the defendant’s

eligibility for the weekend work project was ultimately at the discretion of the 

sheriff so the sentencing court’s recommendation of the work project was not 

binding. Id. “Thus, the sentence, as pronounced by the court at the outset, 

was a sentence of imprisonment subject to alteration at the Sheriff’s 

discretion.” Id. 

Enrique-Ascencio’s participation in the work release program is 

similarly at the discretion of the county sheriff. See Cal. Penal Code 

§§ 4024.2(c) and (d). Indeed, treatment of section 4024.2 by California courts 

supports this understanding. The California Supreme Court has observed that 

“[s]ubdivision (a) of section 4024.2 states that the program may only be offered 

to someone already committed to the correctional facility[,]” and the statute 

further “provides that a person is eligible for the program at the discretion of 

the administrative official in charge of the program[.]” Ryan v. Comm’n on 

Judicial Performance, 754 P.2d 724, 735–36, as modified on denial of reh’g

(Cal. 1988). Thus, a judge does “not have authority under Penal Code section 

4024.2 to order [a defendant] into the work-release program.” Id. at 736. 

Importantly, the court explained, “[a] judge has the power to commit a person 

to a correctional facility, but then the administrative official in charge of the 

facility has the discretionary power to offer work release if the person is 

deemed eligible under the rules of the program.” Id. (emphasis added). Courts 

since appear to have embraced this interpretation of the work release statute. 

See, e.g., United States v. Benz, 472 F.3d 657, 659 (9th Cir. 2006) (“California 

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state judges do not have the discretion to impose work release under 

§ 4024.2(a).”); People v. Dubose, No. B275409, 2017 WL 1365026, at *2 (Cal. 

Ct. App. Apr. 12, 2017) (unpublished) (“By section 4024.2’s explicit terms, 

oversight and administration of a work release program to satisfy an imposed 

term of confinement under that section falls under the authority of the county 

board of supervisors and the county sheriff or appropriate designee—not the 

trial court.”). 

These decisions bolster the Ninth Circuit’s analysis in Schomburg, which 

we have cited with approval in the past. In United States v. Valdez-Valdez, 

143 F.3d 196, 202 n.41 (5th Cir. 1998), we noted that although the defendant 

had not argued that his work release was not a sentence of imprisonment, such 

an argument would likely fail, citing Schomburg. 

Then, in United States v. Brooks, 166 F.3d 723, 727 (5th Cir. 1999), we 

cited Schomburg as persuasive authority in determining that the defendant’s 

boot camp sentence was a sentence of imprisonment for purposes of calculating 

his criminal history score under Section 4A1.1(b). Enrique-Ascencio argues 

that Brooks supports his position because we deemed “physical confinement 

[to be] a key distinction between sentences of imprisonment and other types of 

sentences,” leading to our conclusion that boot camp was a sentence of 

imprisonment because the defendant was not free to leave. Id. at 726–27 

(quoting United States v. Vanderlaan, 921 F.2d 257, 259 (10th Cir. 1990)). By 

contrast, Enrique-Ascencio argues that the work release program in which he 

participated does not require any physical confinement; the participant may 

simply “show up to work and then go home.” In this sense, he contends that 

work release is similar to home detention, which we have held is not a sentence 

of imprisonment because it does not involve confinement in a penal institution. 

See United States v. Gordon, 346 F.3d 135, 138–39 (5th Cir. 2003).

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Brooks and Gordon do not avail Enrique-Ascencio. Both decisions 

accepted Schomburg’s logic that, despite the lack of custodial confinement, the 

sheriff’s discretion to alter the sentence to include imprisonment renders work 

release a sentence of imprisonment. Indeed, Gordon distinguished work 

release from home detention, as “there [was] no indication in the record that 

[the defendant’s] sentence of house arrest involved any discretion by law 

enforcement.” 346 F.3d at 138. 

We are persuaded by Schomburg’s reasoning and adopt it here. The text 

of the Guidelines further supports this interpretation. Importantly, a sentence 

of imprisonment is based on the “sentence pronounced” by the court, and not 

“the length of time actually served.” § 4A1.2 cmt. n.2. The court sentenced 

Enrique-Ascencio to 120 days in the county jail with eligibility to serve his 

sentence through a work release program. His ultimate participation in the 

program in lieu of incarceration was at the discretion of law enforcement. Just 

as the length of time actually served has no impact on whether a defendant’s 

sentence is a sentence of imprisonment, so too is the manner in which the 

sheriff ultimately determines the defendant will serve the jail sentence 

pronounced by the court. 

Enrique-Ascencio’s remaining arguments are similarly unpersuasive. In 

response to his contention that the Government must prove he “actually served 

a period of imprisonment,” i.e., a period of incarceration, on his sentence, 

§ 4A1.2 cmt. n.2, the Government asserts that “period of imprisonment” has a 

more limited meaning, as evidenced by the commentary’s reference to Sections 

4A1.2(a)(3) and (b)(2). Those provisions address the suspension of sentences, 

which the Guidelines treat differently. For example, any part of a sentence of 

imprisonment that was suspended does not count toward the “sentence of 

imprisonment.” § 4A1.2(b)(2). Therefore, the requirement of actually serving

a period of imprisonment is meant only to carve out sentences that were 

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initially pronounced as sentences of imprisonment, but were subsequently 

judicially suspended. That an escapee is counted as having actually served a 

period of imprisonment, see § 4A1.2 cmt. n.2, underscores the point that 

judicial suspension of a sentence (which leaves no discretion to law 

enforcement), and not actual confinement, is the focus of that clause. We think 

this a more reasonable construction of the term because it avoids conflict with 

the Guidelines’ emphasis on “the sentence pronounced,” rather than “the 

length of time actually served.” See id.

Enrique-Ascencio also invokes the canon of statutory construction 

against surplusage, pointing out that another Guideline, Section 4A1.1, lists 

both work release and imprisonment as examples of criminal justice sentences, 

suggesting that the two must be distinct. See § 4A1.1(d) (stating that a 

defendant receives two extra criminal history points “if the defendant 

committed the instant offense while under any criminal justice sentence, 

including probation, parole, supervised release, imprisonment, work release, 

or escape status”). If “imprisonment” were understood to include “work 

release,” Enrique-Ascencio argues, the latter would be surplusage. See Ratzlaf 

v. United States, 510 U.S. 135, 140–41 (1994). But the surplusage canon

“cannot always be dispositive because (as with most canons) the underlying 

proposition is not invariably true. Sometimes drafters do repeat themselves . 

. .” Scalia & Garner, Reading Law: The Interpretation of Legal Texts, 176–77 

(1st ed. 2012). That canon is inapt in the context of Section 4A1.1, in which

the Commission was trying to account for myriad “jurisdictional variations in 

offense definitions, sentencing structures, and manner of sentence 

pronouncement.” § 4A1.1 cmt. background. As the Government explains, it is 

more likely that the Commission was especially inclusive in expounding the 

meaning of a “criminal justice sentence,” and some redundancy crept in.

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Furthermore, the Government points to another Guideline that 

mentions work release, Section 5G1.3, which expressly includes work release 

within the definition of a “term of imprisonment.” Section 5G1.3 discusses how 

sentences are imposed on defendants subject to an undischarged term of 

imprisonment and provides that: “[i]f the instant offense was committed while 

the defendant was serving a term of imprisonment (including work release,

furlough, or escape status)” the sentence should be imposed consecutively to 

the undischarged term of imprisonment. § 5G1.3(a). By the Government’s 

reckoning, Sections 4A1.1 and 5G1.3 contain the only two instances of the term 

“work release” in the Guidelines. And one of those instances plainly includes 

work release in the definition of “a term of imprisonment.” This strongly 

suggests that the Commission recognized that work release may be a means of 

serving a sentence of imprisonment, rather than a separate status. By 

contrast, the Guidelines treat a sentence of home detention as something other 

than a sentence of imprisonment. See Gordon, 346 F.3d at 138–39 (observing 

that Sections 5C1.1(c) and 7B1.3(d) distinguish between home detention and 

imprisonment).

Accordingly, we hold that Enrique-Ascencio’s 120-day sentence is a 

sentence of imprisonment, regardless of whether he served it in whole or in 

part through California’s Section 4024.2 work release program. Therefore, 

based on his cumulative 485-day sentence, Enrique-Ascencio was previously 

convicted of “a felony . . . drug trafficking offense for which the sentence 

imposed exceeded 13 months,” warranting Section 2L1.2’s 16-level 

enhancement. 

2. District Court’s Reliance on Non-binding Plea Document 

Enrique-Ascencio also challenges the enhancement on the grounds that 

the Government failed to satisfy its burden of proof with competent evidence 

of his prior conviction and sentence. Because the PSR appended only a non-

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binding plea document as proof of the predicate offense, Enrique-Ascencio 

reserved his right to object if the Government did not provide a certified copy 

of the judgment by the date of sentencing. At sentencing, the Government had 

not yet obtained the document. Enrique-Ascencio notified the district court of 

his intent to file an appeal and indicated that, although he did not contest the 

fact of the conviction, a certified copy of the judgment would be necessary for 

the appellate record. He agreed to a continuance to the imposition of final 

judgment to allow the Government time to provide a certified copy, which the 

Government agreed to do. Final judgment, however, was entered without such 

documents. Some months later, the Government provided the district court 

with three additional documents: (1) the same plea document that was 

originally appended to the PSR; (2) the criminal complaint for the 2006 offense; 

and (3) a case print of the court minutes relating to the offense. In its brief to 

this Court, the Government stated that it was in the process of obtaining a 

copy of the judgment from San Bernardino County to supplement the record. 

The Government has since represented that for reasons unknown and despite 

multiple requests, the clerk’s office in San Bernardino County has not yet 

produced the judgment. Nevertheless, the Government maintains that the 

documents in the record are sufficient to support the district court’s imposition 

of the enhancement. 

“A district court cannot impose a sentence enhancement such as 

[§ 2L1.2(b)(1)(A)(i)] unless the government has proven any facts necessary to 

support the enhancement by a preponderance of the evidence.” United States 

v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). We review the district court’s 

factual findings for clear error. Id. A factual finding is not clearly erroneous 

if it is “plausible in light of the record as a whole.” Id. “This court will find 

clear error only if a review of the record results in a ‘definite and firm conviction 

that a mistake has been committed.’” United States v. Lopez-Cano, 516 F. 

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App’x 350, 352 (5th Cir. 2013) (unpublished) (quoting Rodriguez, 630 F.3d at 

380). 

Enrique-Ascencio contends that the “categorical approach” of Taylor v. 

United States, 495 U.S. 575 (1990), applies to a sentencing court’s 

determinations that a prior offense qualifies as a predicate for a sentence 

enhancement. We agree. See, e.g., United States v. Gomez-Alvarez, 781 F.3d 

787, 792 (5th Cir. 2015); United States v. Garza-Lopez, 410 F.3d 268, 273 (5th 

Cir. 2005). “Under the categorical approach set forth in Taylor v. United 

States, a sentencing court looks to the elements of a prior offense, rather than 

the facts underlying the conviction, when classifying a prior offense for 

sentence enhancement purposes.” Gomez-Alvarez, 781 F.3d at 792. When the 

statutory definition of the prior offense does not categorically establish that it 

is a qualifying offense for the enhancement, the Supreme Court has, under 

certain circumstances, endorsed a “modified” categorical approach, under 

which a sentencing court “is permitted to look beyond the fact of conviction and 

the statutory definition of the prior offense.” Id. (citing Shepard v. United 

States, 544 U.S. 13, 17 (2005)). Under this approach, a court may look to a 

limited class of documents, such as a “charging document, written plea 

agreement, transcript of plea colloquy, and any explicit factual finding by the 

trial judge to which the defendant assented.” Shepard, 544 U.S. at 16. 

Proper documents are limited to “conclusive records made or used in 

adjudicating guilt.” Id. at 21. This Court has previously determined that 

certain documents are not Shepard-approved. The PSR, standing alone, 

cannot establish whether a prior offense qualifies for a sentence enhancement. 

United States v. Gutierrez-Ramirez, 405 F.3d 352, 357 (5th Cir. 2005). 

Criminal complaints are also inadequate because they do not represent the 

final charging document to which a defendant pleaded guilty. Lopez-Cano, 516 

F. App’x at 353–54 (explaining that under California criminal procedure, a 

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felony prosecution commences with a criminal complaint, but is subsequently 

replaced by an information or stipulated to be deemed an information). For 

the same reason, the plea document appended to the PSR, a declaration by 

defendant of intention to plead nolo contendere, is not an acceptable record

because it is not a final written plea agreement between the parties and 

approved by the court. Docket sheets and case summaries also “are not 

Shepard-approved documents because they were prepared by court [clerical 

staff] not judges.” Id. at 354. As we explained in Gutierrez-Ramirez, such 

documents do not have sufficient indicia of reliability “to satisfy the ‘rigorous 

standard’ required by Taylor’s modified categorical approach.” 405 F.3d at 358 

(citation omitted).

Enrique-Ascencio asserts that none of the documents in the record 

satisfy this standard. Moreover, he claims that consideration of the documents 

provided after entry of final judgment would violate his right to be present at 

sentencing and right to be heard under due process and Federal Rule of 

Criminal Procedure 32. The Government, however, maintains that even if 

these documents would not satisfy the Taylor/Shepard standard, we have, in 

some cases, condoned the use of non-Shepard documents to establish the fact 

of an underlying conviction, as opposed to facts about the underlying 

conviction. See, e.g., Lopez-Cano, 516 F. App’x at 354; United States v. NeriHernandes, 504 F.3d 587, 590–92 (5th Cir. 2007). The Government contends 

that if such documents are permissible to establish the fact of an underlying 

conviction, they are by implication sufficient to establish the fact of an 

underlying sentence. The problem is that the Government must prove not only 

the fact of Enrique-Ascencio’s sentence, but also facts about the sentence, 

namely, whether it provided the remaining one month of imprisonment 

necessary to support the Section 2L1.2 enhancement. 

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We agree with Enrique-Ascencio that, issues of notice aside, none of the 

documents in the record satisfy the reliability standard established by Taylor

and Shepard. In the face of a properly mounted challenge, such documents, 

standing alone, cannot serve as a basis for a sentence enhancement. Here, 

however, Enrique-Ascencio has never contested the existence of the underlying 

offense or his 120-day jail sentence. Therefore, these facts, in view of the record 

as a whole, are plausibly “explicit factual finding[s] by the trial judge to which 

the defendant assented,” which may be appropriately considered even under 

Shepard. See 544 U.S. at 16. 

Even assuming the district court’s reliance on the plea document was 

error, the error was harmless. Enrique-Ascencio’s argument is fundamentally 

legal in nature. He contends that the possibility that he served his sentence 

entirely through work release makes it not a “sentence of imprisonment” for 

purposes of the enhancement. In so far as there is any factual dispute, it is 

whether the Government has proven with competent evidence that he served 

at least one day of his 120-day sentence in custody. Because EnriqueAscencio’s 120-day sentence is a sentence of imprisonment, even if served 

entirely through work release, this factual dispute is immaterial. We have 

only remanded when resolution of the factual dispute may have had an effect 

on the sentence imposed. See, e.g., Gutierrez-Ramirez, 405 F.3d at 359; United 

States v. Espinoza-Acuna, 328 F. App’x 918, 919 (5th Cir. 2009) (unpublished). 

This is not such a case. Therefore, remand on this issue is not warranted. 

B. Post-Sentencing Guidelines Amendment 

Lastly, Enrique-Ascencio argues that we should remand to the district 

court in order to determine whether a lesser sentence is appropriate under an 

amendment to the Guidelines that took effect after the date of his sentence. 

Enrique-Ascencio was sentenced in March 2016 and, as stated supra in note 2, 

the amendment in question took effective on November 1 of that year. 

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Pursuant to that amendment, Enrique-Ascencio would qualify for at least a 

six-level reduction to his offense level, which would give rise to a potential 26-

month reduction in his sentence if he were sentenced at the bottom of the new 

range. 

As Enrique-Ascencio concedes, because he did not object to his sentence

on these grounds, we review only for plain error. United States v. GarciaCarrillo, 749 F.3d 376, 378 (5th Cir. 2014). And Enrique-Ascencio 

acknowledges that we addressed this very issue in Garcia-Carrillo and held 

that it is not plain error for a district court to fail to consider a non-retroactive 

post-sentencing amendment to the Guidelines, even if it might have affected 

the sentence imposed by the district court. Id. at 380. He argues, however, 

that Garcia-Carrillo must be reconsidered in light of Molina-Martinez v. 

United States, 136 S. Ct. 1338 (2016). 

But Molina-Martinez has no bearing on the issue presented here. That 

case involved a situation where the district court had incorrectly calculated the 

guideline range under the existing Guidelines. Id. at 1341. Although MolinaMartinez clarifies the application of plain error review to such errors, it says

nothing about applying that standard to non-erroneous sentencing decisions 

that might have been affected, had a subsequent Guidelines amendment

controlled. Accordingly, Garcia-Carrillo is dispositive and forecloses EnriqueAscencio’s argument. 

III. CONCLUSION 

For the foregoing reasons, we AFFIRM the judgment of the district court.

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