United States v. Ochoa-Olivas

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 9, 2018
• Docket: 17-2210
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 9, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-2210 (D.C. No. 2:16-CR-03018-WJ-1) GUERRERO OCHOA-OLIVAS, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, BALDOCK, and CARSON, Circuit Judges. _________________________________

In May 2017, Defendant Guerrero Ochoa-Olivas, a citizen of Mexico, violated

a condition of his unsupervised term of supervised release when he reentered the

United States without legal authorization. After a sentencing hearing, the district court

revoked Defendant’s unsupervised term of supervised release and sentenced Defendant

to twelve months of imprisonment. Defendant appeals this twelve-month revocation

sentence, arguing the sentence is substantively unreasonable. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I.

In April 2016, U.S. Border Patrol agents encountered Defendant in Doña Ana

County, New Mexico, with no legal authorization to be present in the U.S. Agents

arrested him for illegal reentry in violation of 8 U.S.C. § 1326. Defendant pleaded

guilty to this offense pursuant to a plea agreement. In October 2016, the district court

sentenced Defendant to time served and a two-year unsupervised term of supervised

release. Conditions of Defendant’s release included that he “not commit another

federal, state, or local crime” and that he “not reenter the United States without legal

authorization.” ROA Vol. I, 24, 26. Immigration authorities removed Defendant to

Mexico shortly thereafter.

In May 2017, less than seven months after Defendant’s removal, U.S. Border

Patrol agents again encountered Defendant hiding in a bush in Doña Ana County, New

Mexico, with no legal authorization. Agents again arrested him for illegal reentry.

Defendant pleaded guilty to this new charge of illegal reentry pursuant to a plea

agreement. After Defendant pleaded guilty, the U.S. Probation Office petitioned the

district court to revoke Defendant’s term of release imposed in his 2016 case because

he violated the condition of release that he “not commit another federal, state, or local

crime.”

Prior to the hearing, the U.S. Probation Office prepared a presentence

investigation report (PSR). The PSR reveals Defendant’s recent convictions are not

Defendant’s only encounters with U.S. law enforcement. In 2007, Defendant was

arrested for illegal reentry and false claim to citizenship. He received time served for

2 these crimes and was removed to Mexico. In January 2016, Defendant was arrested

for illegal entry. He received ninety days of imprisonment and was removed in April

2016—nine days before authorities arrested him in the U.S. again for illegal reentry in

his aforementioned 2016 case. All told, Defendant has been convicted for illegal

reentry three times, convicted for illegal entry one time, and removed from the U.S.

four times. The PSR additionally shows Defendant has a prior conviction in Cook

County, Illinois, for possession of between fifteen and one hundred grams of cocaine.

In light of Defendant’s criminal history and instant violation, the parties agreed

the U.S. Sentencing Commission’s relevant policy statement suggested a range of

imprisonment of twelve to eighteen months upon revocation of Defendant’s

unsupervised term of supervised release. 1 See U.S. Sentencing Guidelines Manual

§ 7B1.4(a) (U.S. Sentencing Comm’n 2016). Defendant filed a motion for a downward

departure, arguing he was coerced to enter the U.S. without authorization. Defendant

explained he initially wished to return to the U.S. to help his wife, a U.S. citizen,

recover from an automobile accident. After paying a smuggler $1500 to bring him to

the U.S., Defendant alleges he changed his mind and wanted to stay in Mexico. In

response to Defendant’s change of heart, the smuggler allegedly held Defendant at

gun-point and threatened to kill him if he did not cross the border. While Defendant

1 The U.S. Sentencing Commission issues policy statements, rather than guidelines, regarding terms of imprisonment upon revocations of supervised release. U.S. Sentencing Guidelines Manual Ch. 7, Pt. A (U.S. Sentencing Comm’n 2016). 3 did not assert duress as an affirmative defense to criminal liability, he argued these

facts satisfied “the broader definition of duress” for sentencing purposes.

The district court held a sentencing hearing regarding Defendant’s 2017 illegal

reentry conviction and the revocation of his term of release in his 2016 case. For the

illegal reentry conviction, the district court sentenced Defendant to eighteen months of

imprisonment and a two-year unsupervised term of supervised release. Defendant does

not challenge this eighteen-month sentence. For the revocation of his prior term of

release, the district court noted that, given Defendant’s violation and his criminal

history, his revocation range was twelve to eighteen months of imprisonment. The

court “[took] into account the mitigating circumstances that Defendant’s counsel

raised” but did not depart downward from the revocation range. ROA Vol. V, 19.

Instead, the court concluded the lower end of the range was appropriate and sentenced

Defendant to twelve months of imprisonment—six months to run concurrently to the

eighteen-month sentence and six months to run consecutively. Defendant timely

appealed this revocation sentence.

II.

Defendant’s sole challenge on appeal is to the substantive reasonableness of his

twelve-month revocation sentence. “We review the substantive reasonableness of a

sentence for abuse of discretion.” United States v. Chavez, 723 F.3d 1226, 1233 (10th

Cir. 2013) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). In determining the

substantive reasonableness of a sentence, we look to “the circumstances of the case in

light of the factors set forth in 18 U.S.C. § 3553(a).” Id. (quoting United States v.

4 Reyes-Alfonso, 653 F.3d 1137, 1145 (10th Cir. 2011)). If such considerations indicate

the sentence “exceed[s] the bounds of permissible choice,” the sentence is

substantively unreasonable. Id. (quoting United States v. McComb, 519 F.3d 1049,

1053 (10th Cir. 2007)). Sentences within the range suggested by the U.S. Sentencing

Commission’s policy statements are presumptively reasonable, and a defendant bears

the burden of rebutting this presumption “in light of the other sentencing factors laid

out in [18 U.S.C.] § 3553(a).” 2 United States v. McBride, 633 F.3d 1229, 1232–33

(10th Cir. 2011) (citing United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006)).

In this case, the district court sentenced Defendant within the range suggested

by the Commission. Thus, Defendant’s twelve-month sentence is presumptively

reasonable, and Defendant bears the burden of rebutting this presumption in light of

the § 3553(a) factors. Defendant argues his sentence is unreasonable and greater than

necessary to achieve sentencing goals because his violation resulted from coercive

circumstances. Defendant argues this coercion eliminates the need for deterrence,

presumably because there is no voluntary action to deter. We disagree. Even if

Defendant was coerced to reenter the U.S., Defendant voluntarily paid a smuggler

$1500 to bring him to the U.S. and went to the border. Furthermore, after crossing the

2 The relevant § 3553(a) factors include: “the nature and circumstances of the offense and the history and characteristics of the defendant”; the need to provide adequate deterrence; the need to protect the public; the need to provide the defendant with training, medical care, or other treatment; the relevant sentencing range; any pertinent policy statements; “the need to avoid unwarranted sentence disparities among” similarly situated defendants; and “the need to provide restitution to any victims.” 18 U.S.C. § 3553(a); see id. § 3583(e). 5 border, Defendant did not turn himself into authorities or turn around once he crossed

the border. Instead, he showed an attempt to evade authorities by hiding in a bush in

Camino Real Landfill, which is approximately two miles north of the border.

Defendant voluntarily took these actions despite his prior convictions, his four

prior removals, and multiple warnings not to come back to the U.S. without legal

authorization. The district court recounted that in sentencing Defendant in 2016, the

court told Defendant, “[D]o not come back. You will not be authorized to come back.”

ROA Vol. V, 8. The district court continued:

I gave him a time-served sentence, and then as an additional incentive, I imposed an unsupervised term of supervised release. So I gave him the minimum sentence I could, and I said, don’t come back, and here’s an additional reason not to come back, because you’re under an unsupervised term of supervised release.

Id. Despite the district court’s efforts to deter Defendant’s reentry, Defendant

voluntarily took the aforementioned actions that resulted in the revocation of his

unsupervised term of supervised release. The need to specifically deter Defendant

from entering the U.S. without legal authorization remains.

Defendant notes three other facts in passing. To the extent Defendant argues

these facts rebut the presumption of reasonableness attached to his sentence or

establish his sentence is greater than necessary, we disagree. First, Defendant notes

his initial reason for reentering the U.S. was a desire to be with his wife while she

recovered from an automobile accident. This desire is understandable but simply does

not explain why, in light of the § 3553(a) factors, his sentence is unreasonable. Second,

Defendant notes none of Defendant’s prior convictions are for violent offenses, so

6 there is no need to protect the public from Defendant. Protection of the public,

however, is only one of many § 3553(a) factors the district court must consider. The

district court was not required to afford this factor more weight than other factors,

specifically Defendant’s criminal history or the need to deter Defendant from future

illegal reentries. See United States v. Barajas-Garcia, 229 F. App’x 737, 741 (10th

Cir. 2007) (unpublished). Third, Defendant notes he is certain to be removed to

Mexico after serving his sentences. But the PSR shows Defendant has been removed

four times already and continues to reenter the U.S. without legal authorization.

Because removal clearly has no deterrent effect on Defendant, Defendant’s inevitable

removal has little-to-no bearing on the reasonableness of his sentence here.

Especially in light of Defendant’s criminal history and the need for deterrence,

the district court certainly did not “exceed the bounds of permissible choice” by

sentencing Defendant to twelve months of imprisonment. Defendant has not rebutted

the presumption of reasonableness attached to his twelve-month revocation sentence

or established the sentence was greater than necessary to achieve sentencing goals. We

therefore AFFIRM.

Entered for the Court

Bobby R. Baldock Circuit Judge