USA v. Alfonso Ochoa-Montano

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Diane S. Sykes, Circuit Judge. [6803409-1] [6803409] [16-1849]

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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Argued November 15, 2016
Decided December 9, 2016
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16-1849
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALFONSO OCHOA-MONTANO,
Defendant-Appellant.

Appeal from the
United States District Court for the
Southern District of Illinois.
No. 3:15-CR-30140-SMY
Staci M. Yandle,
Judge.
ORDER

Alfonso Ochoa-Montano, a native and citizen of Mexico, pleaded guilty to being
in the United States without authorization after his removal. See 8 U.S.C. § 1326(a). He
had been removed from the country four times, most recently in 2002 after a federal
conviction for money laundering, an aggravated felony under the Immigration and
Nationality Act. See 18 U.S.C. § 1957; 8 U.S.C. § 1101(a)(43)(D). He thus faced a statutory
maximum of 20 years’ imprisonment. See 8 U.S.C. § 1326(b)(2). The district court
sentenced him at the top of the Guidelines range to 24 months. On appeal
Ochoa-Montano contends that the judge overemphasized the need to deter future
violations of § 1326(a) and gave too little weight to other sentencing factors. We reject
this argument.

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Ochoa-Montano was arrested in 2015 for a traffic offense in southern Illinois, and
local police turned him over to immigration authorities. Before this arrest he had been
removed from the United States four times. The first three times—twice in 1999 and
again in 2000—he departed voluntarily after being detained. When he returned to the
United States after the third voluntary departure, he was paid by a smuggler to harbor
aliens who were on their way to other locations. He was caught and convicted in 2001 of
money laundering, then removed on March 27, 2002, immediately after completing his
15-month sentence. He returned to the United States just days later.
Ochoa-Montano pleaded guilty to a charge of being unlawfully present in the
United States following removal in violation of § 1326(a). He told a probation officer that
he has three children living with ex-wives in Mexico and three more children in the
United States. His three U.S. citizen children were born after he last entered the United
States unlawfully. Ochoa-Montano was apparently living with the children’s mother (a
Mexican citizen) and her 17-year-old son from another relationship (also a Mexican
citizen). Ochoa-Montano also told the probation officer that the couple’s two oldest
children are enrolled in special-needs classes at school and that the youngest, then 9,
suffers from birth defects that have left him completely disabled and in need of full-time
care. According to Ochoa-Montano, the 17-year-old left school to help support the
family. The probation officer was unable to verify any of this information (language
barriers prevented communication with Ochoa-Montano’s girlfriend). Nor could the
probation officer verify the defendant’s claim of long-term employment with a flooring
company; the company’s accountant said that Ochoa-Montano had never worked there.
Ochoa-Montano promised to supply medical records for his son but he never did.
The probation officer calculated a Guidelines imprisonment range of 18 to
24 months based on a total offense level of 13 and a criminal history category of III. She
concluded her report by saying that she had “not identified any factors that would
warrant a departure from the applicable sentencing guidelines range,” though she also
acknowledged that the district court could “consider a variance and impose a
non-guideline sentence” based on the factors in 18 U.S.C. § 3553(a). At sentencing the
district judge adopted the presentence report without objection. The judge then
announced that she did not “intend to depart for any reason noted in the [G]uidelines
manual” but would, “as always, consider the possibility of the appropriateness of any
variances pursuant to 18 U.S.C. § 3553(a).” The government recommended a low-end
sentence of 18 months to deter Ochoa-Montano from doing “exactly the same thing he’s
been doing for nine years.” Defense counsel argued for either time served or a year and a
day in prison. Neither side offered testimony or other evidence.

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Defense counsel asked the judge to consider that the § 1326(a) violation was
nonviolent and argued that the crime was mitigated by Ochoa-Montano’s current family
situation: The family lived in poverty and faced eviction, his youngest son is disabled
and requires full-time medical attention, and his stepson had quit school to support his
disabled brother. Counsel further asserted that Ochoa-Montano had known it was a
crime to return to the United States but did so to help his family (though his children in
the United States had not yet been born when he reentered in 2002, and his other
children were in Mexico). Counsel insisted that Ochoa-Montano’s criminal history was
weighted too heavily in the Guidelines range because of the 8-level increase he received
based on his conviction for an aggravated felony. See U.S.S.G. § 2L1.2(b)(1)(C). The
lawyer added that Ochoa-Montano intended to apply for asylum and thus would be
detained after completing his prison sentence while waiting for a decision on that
application.
The judge acknowledged the general difficulty of fashioning a sentence
“sufficient, but not greater than necessary” in light of the nature of the crime and the
defendant’s character. The judge was “not insensitive to Mr. Montano in terms of his
family situation [and] his children” and acknowledged her belief that “he did what he
did for his family.” But she said that one of her “jobs is to impose a sentence that
promotes respect for the law” and “a few of the factors in this case … st[ood] out more
than others.” She reasoned that although § 1326(a) is not a violent crime, it nevertheless
is a “very serious offense.” Ochoa-Montano’s repeated illegal entries demonstrated that
he does not respect the law, the judge elaborated, so “no departure or variance, certainly
downward variance, [was] warranted here.” The judge rejected the contention that the
8-level increase under § 2L1.2(b)(1)(C) was too harsh as applied to Ochoa-Montano,
whom she described as the “poster child” for an upward variance. Ochoa-Montano’s
family situation, the court added, “may explain some things” but did not “excuse” his
lack of “respect for the law.” The judge concluded that a 24-month prison term was
appropriate “because of Mr. Montano’s history and characteristics in particular, the
nature of his prior criminal history, the repeated reentries,” and his complete “disregard
for the law with respect to entry as well as apparently employment.”
On appeal Ochoa-Montano asserts that the judge “did not properly consider the
factors articulated in 18 U.S.C. § 3553(a) in imposing its sentence.” As we understand his
argument, however, what he actually contends is that the court should have weighed the
§ 3553(a) factors more favorably to him. Ochoa-Montano repeats the arguments he made
in his sentencing memorandum and at the sentencing hearing, and he accuses the judge
of prematurely announcing her intention to sentence him within the Guidelines range

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and then sentencing him too harshly after fleetingly rejecting his grounds in mitigation.
He also says the judge overemphasized the need to deter him from committing the same
offense in the future.
A sentence within the Guidelines range, like this one, is presumptively
reasonable. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Grzegorczyk,
800 F.3d 402, 405 (7th Cir. 2015). The sentencing judge must consider the § 3553(a)
factors, e.g., Gall, 552 U.S. at 51; United States v. Lockwood, 789 F.3d 773, 781 (7th Cir. 2015),
but what weight to give those factors is left to the judge’s discretion, see United States v.
Melendez, 819 F.3d 1006, 1013 (7th Cir. 2016); United States v. Smith, 721 F.3d 904, 908
(7th Cir. 2013); United States v. Busara, 551 F.3d 669, 674 (7th Cir. 2008); United States v.
Johnson, 471 F.3d 764, 766 (7th Cir. 2006). We do not conduct our own weighing of the
§ 3553(a) factors. United States v. Warner, 792 F.3d 847, 856 (7th Cir. 2015); United States v.
Gammicchia, 498 F.3d 467, 469 (7th Cir. 2007).
Ochoa-Montano first criticizes the judge for announcing early on in the hearing
that she intended to impose a sentence “within the suggested Guidelines.” But that
criticism mischaracterizes what the judge did. The judge actually said, in line with the
probation officer’s uncontested representation that no ground for a departure had been
identified, that she did “not intend to depart for any reason noted in the [G]uidelines
manual.” But the judge immediately added that she would, “as always, consider the
possibility of the appropriateness of any variances” pursuant to § 3553(a). What is more,
there is no reason why a judge cannot have a particular sentence in mind after reviewing
the presentence report and the parties’ written submissions so long as the judge is open
to further argument during the sentencing hearing. United States v. Dill, 799 F.3d 821, 825
(7th Cir. 2015). And here the judge thoroughly addressed the points raised at sentencing.
Ochoa-Montano does not contend otherwise.
What he does contend is that the judge relied entirely on the need to deter his
conduct. This too misreads the record. The judge also discussed the need to promote
respect for the law, for which Ochoa-Montano had shown “total disregard.” And the
judge was not unsympathetic to Ochoa-Montano’s argument that he reentered the
United States in 2002 to support his family. But she ultimately rejected Ochoa-Montano’s
attempt to use his family situation as an excuse and assigned greater weight to
Ochoa-Montano’s repeated criminal conduct, including not just his unlawful entries but
also smuggling illegal aliens for profit and obtaining employment illegally.
Ochoa-Montano does not like how the judge weighed the various factors, but

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dissatisfaction with the weight given to the particular § 3553(a) factors is not ground for
reversal. Warner, 792 F.3d at 856.
Finally, Ochoa-Montano asserts that the judge “fleetingly” rejected his arguments
in mitigation, in particular “that [a sentence of] time served could be taken into account
in order to render a downward variance.” A “fleeting” rejection is not the same as a
failure to consider an argument in mitigation. Once again, Ochoa-Montano simply
expresses disagreement with how the judge weighed his arguments in mitigation.
A district court need only address principal arguments in mitigation, Grzegorczyk,
800 F.3d at 406; United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir. 2009), and
most of the arguments advanced by Ochoa-Montano are “stock arguments” that could
have been passed over without comment, see United States v. White, 582 F.3d 787, 798
(7th Cir. 2009); United States v. Tahzib, 513 F.3d 692, 695 (7th Cir. 2008); United States v.
Cunningham, 429 F.3d 673, 678 (7th Cir. 2005). The argument Ochoa-Montano singles out
here—that his time spent in pretrial detention should have been considered—is not a
principal argument in mitigation. Counsel exaggerates its importance to the sentencing
as a whole: It is mentioned in just two sentences in the 27-page sentencing transcript.
During the sentencing hearing, Ochoa-Montano’s principal argument was that he
deserved a lighter sentence based on his family’s hardships, including their poverty and
their disabled son. The judge took into consideration Ochoa-Montano’s family situation
but concluded that “just like anybody else’s family situation,” it did not excuse his crime.
As to Ochoa-Montano’s contention that his sentence is simply too harsh,
especially given that the government recommended less time, we note only that a
district judge has great discretion in sentencing, even within the guidelines range. United
States v. Rushton, 738 F.3d 854, 861 (7th Cir. 2013). That discretion was properly exercised
in this case.
AFFIRMED.