United States v. Amado Ochoa

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2018
• Docket: 16-50309
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 14 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 16-50309, 16-50310

Plaintiff-Appellee, D.C. Nos. 2:14-cr-00557-FMO-1, v. 2:14-cr-00553-FMO-3

AMADO OCHOA, AKA Big Dog, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Argued and Submitted April 9, 2018 Pasadena, California

Before: BEA and MURGUIA, Circuit Judges, and KEELEY,** District Judge.

Amado Ochoa appeals his jury conviction for engaging in the business of

unlicensed firearms dealing in violation of 18 U.S.C. § 922(a)(1)(A). Ochoa

argues that there was insufficient evidence to prove that he engaged in the business

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Irene M. Keeley, United States District Judge for the Northern District of West Virginia, sitting by designation. of firearms dealing without a license. We have jurisdiction under 28 U.S.C. §

1291, and we affirm.

Under 18 U.S.C. § 922(a)(1)(A), it is unlawful for any person “except a

licensed importer, licensed manufacturer, or licensed dealer, to engage in the

business of importing, manufacturing, or dealing in firearms.” “[E]ngaged in the

business” as applied to a “dealer in firearms” is defined as “a person who devotes

time, attention, and labor to dealing in firearms as a regular course of trade or

business with the principal objective of livelihood and profit through the repetitive

purchase and resale of firearms, but such term shall not include a person who

makes occasional sales, exchanges, or purchases of firearms for the enhancement

of a personal collection or for a hobby, or who sells all or part of his personal

collection of firearms.” 18 U.S.C. § 921(a)(21)(C).

Ochoa does not dispute that he acted as a broker of firearms between the

confidential informant and various sellers. Rather, Ochoa argues that brokering is

not included in § 922(a)(1)(A)’s ambit. On the contrary, § 922(a)(1)(A) reaches

those who hold themselves out as sources of firearms. See United States v. King,

735 F.3d 1098, 1107 (9th Cir. 2013) (upholding sufficiency of evidence for

conviction of a defendant who “held himself out as a firearms dealer”). “It is

enough to prove that the accused has guns on hand or is ready and able to procure

2 them for the purpose of selling them from time to time to such persons as might be

accepted as customers.” United States v. Breier, 813 F.2d 212, 213-14 (9th Cir.

1987) (internal quotation marks omitted). Moreover, “Section 922(a)(1)(A) does

not require an actual sale of firearms.” King, 735 F.3d at 1107 n.8. The language

of the statute does not require a defendant personally to carry out repetitive

purchases and sales of firearms; the statute requires “the repetitive purchase and

resale of firearms,” not “defendant’s repetitive purchase and resale of firearms.” 18

U.S.C. § 921(a)(21)(C) (emphasis added). Here, while the evidence demonstrated

that Ochoa did not purchase and sell firearms himself, it was sufficient to

demonstrate that he had the principle objective of making a profit through the

repetitive purchase and sale of firearms, even if those purchases and sales were

carried out by others.

AFFIRMED.