Before DENNIS, GRAVES, and WILLETT, Circuit Judges. DON R. WILLETT, Circuit Judge: In this sentencing appeal, Jose Ismael Martinez-Ovalle contends that the district court violated the Ex Post Facto Clause by sentencing him under the 2018 Sentencing Guidelines (those in effect when he was sentenced) rather than under the more lenient 2016 Guidelines (those in effect when he committed his crime). We agree, vacate the district court’s sentencing order, and remand for resentencing. I In 2009, Martinez-Ovalle, who was in the country illegally, was convicted of two Texas felonies, sentenced to probation, and deported. He reentered the United States at an unknown time. In 2015, Martinez-Ovalle was taken into custody and deported again, but not before a Texas court revoked his prior probation and imposed a two-year prison sentence instead. Nevertheless, he persisted. In 2016, Martinez-Ovalle illegally reentered the United States yet again. And yet again, he was arrested on Texas state charges.[1] This time, though, Immigration and Customs Enforcement officials took Martinez-Ovalle into custody from the state jail, and he pleaded guilty to illegal reentry after removal.[2] The probation officer who prepared Martinez-Ovalle’s presentence report determined that Martinez-Ovalle’s crime concluded in 2018, when the 2016 Sentencing Guidelines were still effective. But she applied the stricter 2018 Guidelines, dismissing any ex post facto concerns. Under the 2018 Guidelines, Martinez-Ovalle received a total offense level of 17, including an eight-level § 2L1.2(b)(2)(B) increase, and a sentencing range of 30-37 months’ imprisonment.[3] Martinez-Ovalle objected, arguing that the Ex Post Facto Clause bars retroactive application of any post-offense Guidelines amendment that yields a stiffer sentence.[4] Martinez-Ovalle maintained that the sentencing judge was required to apply the 2016 Guidelines. At issue was the § 2L1.2(b)(2) enhancement. Under the 2018 Guidelines, Martinez-Ovalle received an eight-level § 2L1.2(b)(2)(B) enhancement because he received a two-year Texas sentence for conduct that occurred prior to his first removal.[5] But under the 2016 Guidelines, Martinez-Ovalle would have avoided this § 2L 1.2(b)(2)(B) enhancement because, prior to his first removal, his probation had not been revoked, and he had not received a prison sentence.[6] Instead, he would have only received a four-level § 2L1.2(b)(2)(D) enhancement due to his original Texas felony convictions.[7] And if the 2016 four-level enhancement was applied instead of the 2018 eight-level enhancement, Martinez-Ovalle’s minimum guideline sentence would have been 12 months lower.[8] The sentencing court overruled Martinez-Ovalle’s objection and adopted the PSR. But then, after considering the “equity” of Martinez-Ovalle’s ex post facto argument, the judge “slightly var[ied]” from the 30-37 month range and sentenced Martinez-Ovalle to 23 months’ imprisonment.[9] II On appeal, Martinez-Ovalle re-urges that the Ex Post Facto Clause required the sentencing court to apply the 2016 Guidelines to his 2018 offense. An ex post facto violation occurs when “a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense.”[10] Resolving Martinez-Ovalle’s ex post facto claim requires interpreting the Guidelines, and we review the district court’s interpretation and application of the Guidelines de novo.[11] A district court usually applies the Guidelines “effective at the time of sentencing.”[12] But when this generates a “harsher penalty” than applying the Guidelines effective at the time of the crime, the Ex Post Facto Clause obligates the district court to apply the older, more lenient Guidelines.[13] And since the 2018 Guidelines increased Martinez-Ovalle’s minimum guideline sentence by 12 months compared to the 2016 Guidelines’ minimum guideline sentence, we side with Martinez-Ovalle.[14] The Government urges us to adopt the Sixth Circuit’s approach in Huff v. United States: retroactively applying “clarifying” amendments doesn’t violate the Ex Post Facto Clause because that doesn’t increase the defendant’s sentence, it only “further expla[ins] the Guidelines range that always was applicable to a defendant.”[15] As we are bound by precedent—both ours and, more importantly, the Supreme Court’s—we decline.[16] In Huff, the defendant completed his crime when the 2002 Guidelines applied but was sentenced after the 2007 Guidelines took effect.[17] Applying the 2007 Guidelines, the district court included an enhancement not available under the 2002 Guidelines.[18] As a result, Huffs sentencing range increased from “53 to 71 months to 70 to 87 months.”[19] Huff cried constitutional foul under the Supreme Court’s Peugh decision, which held that an ex post violation occurs when “a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense.”[20] The Sixth Circuit agreed,[21] but not before drawing a distinction that no other circuit has drawn.[22] It stated that, under Peugh, “clarifying amendments may be applied retroactively” because this application doesn’t “increase . . . the Guidelines range applicable to a defendant”—it just clarifies “the Guidelines range that always was applicable.”[23] The Sixth Circuit reasoned that Peugh created a two-step inquiry: (1) did the applied Guidelines retroactively increase the defendant’s punishment such that the relevant amendment was impermissibly substantive, or (2) did the applied Guidelines, as modified by the amendment, permissibly “clarif[y] what the Commission deems the guidelines to have already meant”?[24] We respectfully disagree and decline to adopt this two-step inquiry as we believe it is inconsistent with Peugh and with our (and other circuits’) post-Peugh precedent.[25] In Peugh, the 1998 Guidelines applied when the defendant committed his crime, and the 2009 Guidelines applied when he was sentenced.[26] Applying the 2009 Guidelines, the district court’s minimum guideline sentence was 40 months longer than it would have been under the 1998 Guidelines.[27] Peugh was sentenced to 70 months, and the Seventh Circuit affirmed.[28] On appeal, the Supreme Court found “[s]uch a retrospective increase in the measure of punishment raises clear ex post facto concerns.”[29] It reversed, announcing “a rule that retrospective application of a higher Guidelines range violates the Ex Post Facto Clause.”[30] Our circuit has faithfully applied Peugh. For example, in Urbina-Fuentes we stated, “[i]t is settled that the Ex Post Facto Clause is violated when a sentencing court uses a Guidelines edition generating a higher sentencing range than the range of the edition in effect on the date of the defendant’s criminal conduct.”[31] That’s the boiled-down inquiry—short, sweet, simple.[32] Turning to Martinez-Ovalle’s sentence, the district court’s application of the 2018 Guidelines violated the Ex Post Facto Clause.[33] Under the 2016 Guidelines, those in effect when Martinez-Ovalle’s crime concluded, his sentencing range would have been 18-24 months. Under the 2018 Guidelines, his sentencing range jumped to 30-37 months. Because Martinez-Ovalle was “ultimately sentenced” under the 2018 sentencing range, the “disparity” between the 2016 Guidelines range and the 2018 Guidelines range “means that [he] was sentenced in violation of the Ex Post Facto Clause.”[34] III For these reasons, we VACATE the district court’s sentencing order and REMAND for resentencing in accordance with this opinion.
