Case: 23-10458 Document: 62-1 Page: 1 Date Filed: 03/13/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10458
Summary Calendar FILED
____________ March 13, 2024
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Martin Ochoa-Perez,
Defendant—Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:22-CR-68-1
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Before Jolly, Engelhardt, and Douglas, Circuit Judges.
Per Curiam: *
Martin Ochoa-Perez, under a written agreement, pleaded guilty to
illegal reentry following a prior removal, in violation of 8 U.S.C. § 1326(a)
and (b)(1). His 115-month prison sentence was within the advisory guidelines
sentencing range. Ochoa-Perez has timely appealed this sentence.
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-10458
Ochoa-Perez first argues that the district court’s treatment of his prior
convictions as a sentencing factor rather than an element of the offense under
§ 1326(b)(1) violated the Sixth Amendment. He concedes, however, that this
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998). He raises the issue only to preserve it for possible further
review.
Ochoa-Perez next challenges the substantive reasonableness of his
within-guidelines sentence. Such a sentence is presumptively reasonable.
See United States v. Hernandez, 876 F.3d 161, 166 (5th Cir. 2017). In
challenging the substantive reasonableness of his sentence, however, he
assigns two points of error: (1) the district court erroneously found that his
prior Texas convictions for delivery of a controlled substance under Texas
Health and Safety Code § 481.112(a) were aggravated felonies under
8 U.S.C. § 1101(a)(43)(B), and (2) the district court improperly sentenced
him at the top end of the guidelines range because the district court
considered his “reduced sentencing exposure”. 1 In other words, Ochoa-
Perez asserts that he should have received a sentence at the bottom of the
guidelines range and the district court erred by sentencing him to the top end
of guidelines range. He attributes this error to the district court’s passing
comment that his attorney reduced his sentencing exposure.
As Ochoa-Perez concedes, our review is for plain error. See United
States v. Zarco-Beiza, 24 F.4th 477, 481-82 (5th Cir. 2022). Our review
persuades us that the district court did not clearly err in observing that
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1
The presentence report (“PSR”) noted that Ochoa-Perez could have faced a
maximum penalty of twenty years imprisonment pursuant to § 1326(b)(2). He avoided this
lengthy sentencing provision by agreeing to plead to § 1326(b)(1), a statute that was also
applicable but provided for only ten years imprisonment. Ochoa-Perez is correct that the
district court, at the sentencing hearing, noted that Ochoa-Perez’s attorney had negotiated
with the government a plea bargain with the lesser penalty.
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No. 23-10458
Ochoa-Perez could have been sentenced to a 240-month maximum under §
1326(b)(2) absent the terms of his plea agreement because his convictions
under § 481.112(a) are aggravated felonies. See Puckett v. United States, 556
U.S. 129, 135 (2009); Ochoa-Salgado v. Garland, 5 F.4th 615, 620–22 (5th Cir.
2021); Alexis v. Barr, 960 F.3d 722, 726–29 (5th Cir. 2020). To be clear,
Ochoa-Perez was neither indicted nor sentenced under § 1326(b)(2). The
PSR and the district court merely noted that, based on Ochoa-Perez’s prior
convictions under § 481.112(a), he could have been indicted under this
statute.
Additionally, Ochoa-Perez has not shown that the district court’s
consideration of his reduced sentence under § 1326(b)(1) was clearly
erroneous. See United States v. Gozes-Wagner, 977 F.3d 323, 348 (5th Cir.
2020); United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009). Ochoa-
Perez speculates that he received a sentence at the higher end of the
guidelines range because the district court commended his attorney for
negotiating a plea bargain that reduced the maximum penalty he faced from
240 months to 120 months. This factor, he alleges, influenced the judge to
sentence him at the top end of the guidelines range. 2 This argument,
however, lacks support from the record.
The district court properly relied on the 18 U.S.C. § 3553(a) factors to
determine the proper sentence. In explaining its choice of sentence, the
district court identified three aggravating § 3553(a) factors: Ochoa-Perez’s
criminal history, the nature and circumstances of the offense, and providing
just punishment for the offense. The district court stated that it had balanced
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2
According to the PSR, the calculated range of imprisonment was 92–115 months
under the Sentencing Guidelines. As we noted above, the district court sentenced Ochoa-
Perez to an imprisonment term of 115 months.
3
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No. 23-10458
those factors with other, “significant mitigating factors” and imposed the
sentence it felt was appropriate irrespective of the advisory guidelines range.
On plain-error review, Ochoa-Perez has not met his burden of
overcoming the presumption of reasonableness afforded to his within-
guidelines sentence. See Puckett, 556 U.S. at 135; Hernandez, 876 F.3d at 166;
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Nor has he shown
that any error affected his substantial rights. See United States v. Escalante-
Reyes, 689 F.3d 415, 424 (5th Cir. 2012) (en banc). Accordingly, the
judgment of the district court is, in all respects,
AFFIRMED.
4