USA v. Jose Ochoa-Caledo

Filing

UNPUBLISHED OPINION FILED. [16-11417 Affirmed] Judge: EGJ, Judge: PRO, Judge: CH. Mandate pull date is 09/28/2017 for Appellant Jose Ochoa-Caledo [16-11417]

Case: 16-11417

Document: 00514146298

Page: 1

Date Filed: 09/07/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11417
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
September 7, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.

JOSE OCHOA-CALEDO, also known as Ramiro Cerna-Gonzalez,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-79-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Jose Ochoa-Caledo pleaded guilty to illegal reentry in violation of 8
U.S.C. § 1326(a) and (b)(1)-(2). The presentence report (PSR) recommended an
advisory guidelines range of 24 to 30 months of imprisonment. The district
court sentenced Ochoa-Caledo to 40 months of imprisonment and three years
of supervised release. On appeal, Ochoa-Caledo challenges the procedural
reasonableness of his sentence.

In evaluating whether a district court

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-11417

Document: 00514146298

Page: 2

Date Filed: 09/07/2017

No. 16-11417
committed a procedural error in the sentencing determination, we employ a de
novo standard of review. United States v. Garcia Mendoza, 587 F.3d 682, 688
(5th Cir. 2009).
Ochoa-Caledo argues that the district court committed procedural error
by misapplying the provisions of the Guidelines governing departures in
determining that an upward departure was warranted under U.S.S.G. § 4A1.3,
p.s.

However, the record reflects that the district court imposed a non-

guidelines sentence or upward variance based on the 18 U.S.C. § 3553(a)
sentencing factors. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir.
2008). Therefore, Ochoa-Caledo’s arguments are inapposite.
He also contends that the district court committed procedural error by
failing to adequately explain its decision to impose an upward variance. At
sentencing, the district court listened to the arguments and statements made
by defense counsel and Ochoa-Caledo. The district court also adopted the PSR
and the PSR Addendum, considered the § 3553(a) sentencing factors, and
stated reasons in support of the upward variance. Specifically, the district
court noted the “large number of occasions” in which Ochoa-Caledo “illegally
entered the United States.” The district court also stated that Ochoa-Caledo
had “quite a criminal history” and that none of his prior convictions received
criminal history points. Even if the district court “might have said more,” the
record makes clear that the court considered all of “the evidence and
arguments,” and its statement of reasons for the sentence imposed was “legally
sufficient.” Rita v. United States, 551 U.S. 338, 358-59 (2007).
The judgment of the district court is AFFIRMED.

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