United States of America v. Sergio Ochoa-Torres

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SERGIO OCHOA-TORRES,
Defendant - Appellant.
Nos. 12-50343
12-50345
D.C. Nos. 3:11-cr-00346-BEN
3:12-cr-00738-BEN
MEMORANDUM*
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
FILED
AUG 02 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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-

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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.

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