United States v. Ochoa

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40128 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR DE OCHOA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (B-00-CR-297-1)

August 31, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Hector De Ochoa appeals his sentence for his guilty-plea

conviction for conspiracy to possess with intent to distribute over

100 kilograms of marijuana. He challenges: 1) his offense level

being increased by two, based upon his aggravated role in the

offense; 2) a fine being imposed by the district court without

making a finding whether he had the ability to pay; 3) being

erroneously informed he faced a maximum four-year term of

supervised release at his guilty-plea hearing, but then being

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. sentenced to five years of supervised release; and 4) the

indictment failing to allege a specific drug quantity.

Ochoa supervised at least two other participants in the

marijuana conspiracy; therefore, the district court did not clearly

err when it assessed a two-level increase under U.S.S.G. § 3B1.1(c)

for his role in the offense. See United States v. Parker, 133 F.3d

322, 329-30 (5th Cir. 1998); see also U.S.S.G. § 3B1.1, comment.

(nn.2 & 4) (“To qualify for an adjustment under this section, the

defendant must have been the organizer, leader, manager, or

supervisor of one or more other participants.... There can, of

course, be more than one person who qualifies as a leader or

organizer....”).

Ochoa challenges his fine for the first time on appeal;

therefore, we review this issue only for plain error. See United

States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994). A

sentencing court should impose a fine in all cases, unless the

defendant established an inability to pay. See U.S.S.G. §

5E1.2(a); United States v. Martinez, 151 F.3d 384, 395-96 (5th Cir.

1998), cert. denied, 525 U.S. 1031 (1998). Ochoa did not establish

such inability; furthermore, the record supports the district

court’s determination of Ochoa’s assets. In short, there is no

plain error.

The district court’s plea admonishment that Ochoa faced a

maximum four-year supervised release term was harmless error

because he was advised that the maximum period of possible

incarceration was 40 years. See United States v. Bachynsky, 934

2 F.2d 1349, 1359-60 (5th Cir. 1991) (en banc) (no reversible error

when “the aggregate maximum period of incarceration under the

actual sentence of imprisonment and supervised release cannot

exceed the statutory maximum explained to the defendant”), cert.

denied, 502 U.S. 951 (1991), modified on other grounds, United

States v. Johnson, 1 F.3d 296, 300-01 (5th Cir. 1993) (en banc).

Finally, the indictment alleged the offense involved more than

100 kilograms of marijuana. The imposition of the 70 months’

imprisonment and five-year term of supervised release was within

the statutory and Sentencing Guidelines range and, therefore, did

not present an issue under Apprendi v. New Jersey, 530 U.S. 466

(2000). See 21 U.S.C. § 841(b)(1)(B) (sentence between 5 and 40

years); U.S.S.G. § 5D1.2(a)(1) & (b) (supervised release); United

States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000), cert. denied,

121 S. Ct. 1152 (2001).

AFFIRMED