United States v. Ochoa-Olivas


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 * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 ...

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