United States v. Sergio Ochoa-Torres

FILED
NOT FOR PUBLICATION AUG 02 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 12-50343
12-50345
Plaintiff - Appellee,
D.C. Nos. 3:11-cr-00346-BEN
v. 3:12-cr-00738-BEN

SERGIO OCHOA-TORRES, MEMORANDUM *

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding

Submitted July 24, 2013 **

Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

In these consolidated appeals, Sergio Ochoa-Torres appeals from the 13-

month sentence and three-year term of supervised release imposed following his

guilty-plea conviction for being a deported alien found in the United States, in

violation of 8 U.S.C. § 1326; and the 12-month sentence imposed upon revocation

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

Ochoa-Torres contends that the district court procedurally erred by failing to

explain sufficiently why it imposed a three-year term of supervised release. We

review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,

1108 (9th Cir. 2010), and find none. Ochoa-Torres has not shown a reasonable

probability that he would have received a different sentence had the court given a

more detailed explanation of the sentence. See United States v. Dallman, 533 F.3d

755, 762 (9th Cir. 2008).

Ochoa-Torres further contends that the three-year term of supervised release

is substantively unreasonable. The district court did not abuse its discretion in

imposing supervised release. See Gall v. United States, 552 U.S. 38, 51 (2007).

The imposition of supervised release was substantively reasonable in light of

Ochoa-Torres’s extensive criminal history, which included multiple immigration

offenses. See id.; see also U.S.S.G. § 5D1.1 cmt. n.5 (district court should

consider imposing term of supervised release on deportable alien if it determines

supervised release would provide an added measure of deterrence and protection).

Ochoa-Torres next contends that he was denied his right of allocution under

Federal Rule of Criminal Procedure 32(i)(4)(A)(ii). The record belies Ochoa-

2 12-50343 & 12-50345
Torres’s contention. The district court stated its tentative sentencing decision, but

then permitted Ochoa-Torres to allocute before imposing the final sentence. See

United States v. Laverne, 963 F.2d 235, 237-38 (9th Cir. 1992).

Ochoa-Torres finally contends that the district procedurally erred by failing

to explain sufficiently the 12-month revocation sentence. We review for plain

error, see Valencia-Barragan, 608 F.3d at 1108, and find none. The district gave a

sufficient explanation for the revocation sentence.

AFFIRMED.

3 12-50343 & 12-50345