Whether it is a serious departure from the accepted and usual course of judicial proceedings when a federal court of appeals refuses to consider an intervening change in the controlling law that would have resulted in a three-year reduction in a prisoner's Sentencing Guidelines range

QUESTIONS PRESENTED In this direct criminal appeal, the Fifth Circuit initially denied petitioner’s challenge to the 16-level sentencing enhancement he received under the illegal-reentry Sentencing Guideline, based on circuit law holding that the Texas burglary statute was a divisible, elements-based statute. That enhancement increased Mr. Ortiz-Martinez’s Guidelines range by at least three years, and he received a within-Guidelines sentence. Subsequently, the en banc Fifth Circuit reversed the circuit law and held, exactly as Mr. Ortiz-Martinez had persistently argued, that the Texas statute is not divisible, and reaffirmed that Texas burglary is broader than generic burglary, and thus does not qualify for enhancement. After the en banc change in the law, Mr. Ortiz-Martinez moved to file a rehearing petition out of time, because the Fifth Circuit had retained jurisdiction over the appeal by withholding its mandate. The Fifth Circuit initially granted Mr. Ortiz-Martinez leave to file the untimely petition for rehearing. However, the Fifth Circuit subsequently granted reconsideration and instead denied the motion for leave to file for rehearing by treating it a motion to recall the mandate, despite the fact that the court had never issued its mandate. The day after it denied the motion to “recall” the mandate, the Fifth Circuit issued its mandate for the first time. L In a direct criminal appeal, is it a serious departure from the accepted and usual course of judicial proceedings when a federal court of appeals refuses to consider an intervening change in the controlling law, issued while the court still had jurisdiction over the appeal, that would have resulted in a three-year reduction in a prisoner’s Sentencing Guidelines range? IL. In such a case, does it represent a serious departure from the accepted and usual course of judicial proceedings for the court of appeals to construe a motion to file an out-of-time rehearing petition as a motion to recall the mandate in order to deny relief to a prisoner, when in fact the mandate had not yet been issued? 1