REVISED March 10, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
February 9, 2010
No. 09-40096
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RAFAEL CRISTOBAL CASTILLO-ESTEVEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and SMITH and ELROD, Circuit Judges.
EDITH H. JONES, Chief Judge:
Following his conviction for illegal reentry after deportation, Rafael
Castillo-Estevez appeals the application of a sixteen-level sentencing
enhancement. Finding no reversible error, we AFFIRM.
I. Background
Castillo pled guilty to one count of being unlawfully present in the United
States after deportation in violation of 8 U.S.C. §§ 1326(a) and (b). In light of
Castillo’s past New York state convictions for criminal sale of a controlled
substance, the district court applied a sixteen-level sentencing enhancement to
Castillo’s base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i), which
No. 09-40096
authorizes an enhancement for defendants previously deported after conviction
for a drug trafficking offense. Castillo was ultimately sentenced to 37 months
imprisonment, at the low end of the advisory guidelines range.
Castillo now appeals, contending that his convictions for criminal sale of
a controlled substance do not constitute drug trafficking offenses for purposes
of the § 2L1.2(b)(1)(A)(i) enhancement. Castillo concedes that the convictions
meet the definition of a drug trafficking offense under the 2008 version of the
sentencing guidelines. He argues, however, that the district court actually
applied the 2007 version of the guidelines, and under that version’s more
restrictive definition of a drug trafficking offense, the government did not meet
its burden to show that Castillo’s prior convictions qualified for the
enhancement. Alternatively, if the district court in fact used the 2008
guidelines, Castillo urges that the 2007 version should have been employed
because application of the 2008 version violates the Ex Post Facto Clause of the
Constitution.
We address each of Castillo’s contentions in turn.
II. Analysis
A.
As a threshold matter, we must determine whether the district court
applied the 2007 or 2008 version of the sentencing guidelines. Although the last
overt act of Castillo’s illegal conduct occurred while the 2007 guidelines were in
effect, the 2008 guidelines, effective as of November 1, 2008, were in force at
Castillo’s January 26, 2009, sentencing. Accordingly, the pre-sentence
investigation report (PSR) used the 2008 guidelines version to compute Castillo’s
guidelines sentence range.
Castillo argues, nonetheless, that the district court employed the 2007
guidelines at sentencing, as evidenced by the fact that the parties and the court
engaged in a colloquy concerning the meaning of “drug trafficking offense” that
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would be relevant only under the 2007 version’s more restrictive definition of
that term. The sentencing transcript, however, reflects that, after hearing the
parties’ arguments, the district court expressly adopted the PSR’s findings before
imposing sentence. In light of the district court’s adoption of the PSR, which
explicitly applied the 2008 guidelines, we must conclude that the district court
applied the 2008 guidelines version in sentencing Castillo.
B.
Having determined that the district court applied the sixteen-level
sentencing enhancement using the 2008 guidelines definition of a drug
trafficking offense, we now turn to Castillo’s argument that application of the
2008 guidelines was a violation of the Ex Post Facto Clause. Castillo relies on
this holding of our court: “A sentencing court must apply the version of the
sentencing guidelines effective at the time of sentencing unless application of
that version would violate the Ex Post Facto Clause.” United States v. Kimler,
167 F.3d 889, 893 (5th Cir. 1999). A violation occurs upon the “‘imposition of
punishment more severe than the punishment assigned by law when the act to
be punished occurred.’” Id. (citation omitted).
Because Castillo raises this argument for the first time on appeal, we
review the district court’s application of the 2008 guidelines for plain error.
United States v. Ricardo, 472 F.3d 277, 284 (5th Cir. 2006). Accordingly, Castillo
must show (1) error (2) that is plain and (3) that affects his substantial rights.
Id. This court will correct plain errors only if they seriously affect the fairness,
integrity, or public reputation of judicial proceedings. Id.
In United States v. Suarez, 911 F.2d 1016 (5th Cir. 1999), this court noted
that a sentence enhancement “based on an amendment to the guidelines
effective after the offense was committed ‘would be an obvious . . . violation’ of
the ex post facto clause.” Id. at 1021 (citation omitted). For purposes of the
sixteen-level enhancement, the 2007 guidelines defined a drug trafficking offense
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as one involving the “manufacture, import, export, distribution, or dispensing of
a controlled substance.” U.S.S.G. § 2L1.2(b)(1)(A)(i), comment 1(B)(iv) (2007
ed.). An amendment to the 2008 guidelines, however, expanded the definition
of a drug trafficking offense to include an “offer to sell a controlled substance.”
Id. (2008 ed.). Because New York law provides that a person is guilty of
criminal sale of a controlled substance when, inter alia, he offers to sell a
narcotic, N.Y. PENAL LAW §§ 220.39(1), 220.00(1), Castillo argues that his
convictions qualify as drug trafficking offenses under the 2008 guidelines in
effect at sentencing, but not under the 2007 guidelines in force when his offense
occurred. Castillo thus contends that the sixteen-level enhancement of his
sentence, based upon an amendment to the definition of “drug trafficking
offense” that became effective after commission of his offense, is an ex post facto
violation under Suarez.
Castillo’s argument overlooks the Supreme Court’s subsequent decision in
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), which rendered the
sentencing guidelines merely advisory. In United States v. Rodarte-Vasquez,
488 F.3d 316 (5th Cir. 2007) (Jones, C.J., concurring), it was observed that the
now-advisory guidelines should not raise ex post facto concerns because “the
sentence imposed by the court need not be harsher under later guidelines than
it would have been under the guidelines in effect when the offense was
committed.” Rodarte-Vasquez, 488 F.3d at 325. The Seventh Circuit adopted
this view of the guidelines post-Booker in United States v. Demaree, 459 F.3d 791
(7th Cir. 2006), holding that the Ex Post Facto Clause does not apply to
sentencing guidelines amendments because it applies “only to laws and
regulations that bind rather than advise.” Id. at 794. See also United States v.
Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006) (“When the Guidelines were
mandatory, defendants faced the very real prospect of enhanced sentences
caused by changes in the Guidelines . . . that occurred after they had committed
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No. 09-40096
their crimes. Now that the Guidelines are advisory, the Guidelines calculation
provides no such guarantee of an increased sentence . . . . As such, the Ex Post
Facto Clause itself is not implicated.”). But cf. United States v. Turner, 548 F.3d
1094, 1099–1100 (D.C. Cir. 2008) (rejecting the Seventh Circuit’s reasoning in
Demaree); United States v. Larabee, 436 F.3d 890, 894 (8th Cir. 2006) (stating
post-Booker that “‘retrospective application of the Guidelines implicates the ex
post facto clause’”).
We need not determine here whether ex post facto claims arising from the
application of evolving sentencing guidelines are viable after Booker. Even if the
district court’s application of the 2008 guidelines violated the ex post facto
clause, the error would certainly not be “plain” in light of such post-Booker cases
as Rodarte-Vasquez, Demaree, and Barton. To be “plain,” legal error must be
“clear or obvious, rather than subject to reasonable dispute.” Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). See also United States v. Peltier, 505 F.3d
389, 391 n.3 (5th Cir. 2007) (“Plain error must be ‘error so obvious that our
failure to notice it would seriously affect the fairness, integrity, or public
reputation of [the] judicial proceedings and result in a miscarriage of justice.’”).
Because the caselaw reveals a “reasonable dispute” regarding the ex post facto
implications of retroactive application of the advisory guidelines, the district
court’s error, if any, was not plain.1
Conclusion
1
Our post-Booker decisions in United States v. Reasor, 418 F.3d 466 (5th Cir. 2005), and
United States v. Austin, 479 F.3d 363 (5th Cir. 2007), do not alter our conclusion that the
district court committed no plain error. Reasor is distinguishable. See Rodarte-Vasquez, 488
F.3d at 325 n.2 (Jones, C.J., concurring). Moreover, the court’s acknowledgment in Austin that
retroactive guidelines application might pose ex post facto problems was dicta; ex post facto
claims were not at issue on appeal because the lower court had applied the guidelines version
yielding a lesser penalty. 479 F.3d at 366–67.
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For the foregoing reasons, we AFFIRM the sentence.
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