United States v. Daniel Ochoa Lua , 591 F. App'x 212 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4475
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DANIEL OCHOA LUA, a/k/a Daniel Ochoa-Lua, a/k/a Daniel Lua
Ochoa, a/k/a Daniel Ochoa-Luna, a/k/a Adrian Luis Lua,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:13-cr-00404-NCT-1)
Submitted: January 21, 2015 Decided: January 28, 2015
Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Ochoa Lua appeals the fifty-six month sentence
imposed following his guilty plea to illegal reentry after
removal, in violation of 8 U.S.C. § 1326(a), (b)(1) (2012). On
appeal, Ochoa Lua argues that his sentence was greater than
necessary to satisfy the goals of sentencing enumerated in 18
U.S.C. § 3553(a) (2012). Finding no substantive
unreasonableness, * we affirm.
We review a sentence for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). Where, as here, no claim of
procedural sentencing error is raised, we review the substantive
reasonableness of the sentence. Id. at 51. In considering a
claim of substantive unreasonableness, we “examine[] the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
“[D]istrict courts have extremely broad discretion when
*
Although the Government addresses the procedural
reasonableness of Ochoa Lua’s sentence in its brief, Ochoa Lua’s
opening brief challenges only the substantive reasonableness of
his sentence. See United States v. Edwards, 666 F.3d 877, 887
(4th Cir. 2011) (recognizing that arguments not raised in
opening appellate brief generally are not considered).
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determining the weight to be given each of the § 3553(a)
factors.” United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.
2011). Therefore, we “must defer to the trial court and can
reverse a sentence only if it is unreasonable,” even if the
sentence imposed would not have been our choice. United
States v. Evans, 526 F.3d 155, 160 (4th Cir. 2008) (emphasis
omitted). We presume that Ochoa Lua’s within-Guidelines
sentence is substantively reasonable, a presumption that “can
only be rebutted by showing that the sentence is unreasonable
when measured against the 18 U.S.C. § 3553(a) factors.” United
States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014).
Ochoa Lua fails to meet this burden. Ochoa Lua
identifies various mitigating factors that he asserts mandated a
more lenient sentence, including his family and employment
circumstances, his cooperation with immigration officials, and
the significant Guidelines enhancement applied to him based on a
prior felony drug trafficking conviction for which he received a
probationary sentence. However, the record demonstrates that
the court considered these arguments in conducting its
individualized assessment of Ochoa Lua under § 3553(a), but
ultimately determined that these considerations were outweighed
by Ochoa Lua’s history of repeated unlawful reentry and drug
trafficking conduct while illegally present in the United
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States. Ochoa Lua’s sentence is not unreasonable simply because
the district court could have assigned different weight to these
considerations in conducting its sentencing calculus under
§ 3553(a). United States v. Susi, 674 F.3d 278, 290 (4th Cir.
2012). Moreover, although Ochoa Lua argues that he was entitled
to a downward variance because he did not qualify for a fast
track program in his district of conviction, and that the court
should have run his sentence concurrently to a state sentence,
he fails to demonstrate any abuse of discretion in the court’s
rejection of these arguments. See United States v. Perez-Pena,
453 F.3d 236, 240-44 (4th Cir. 2006) (holding that district
court erred in departing downward to account for lower sentences
received by defendants who qualified for fast track program in
other districts). Viewing the totality of the circumstances, we
find no basis to conclude that the district court abused its
discretion when it determined that the § 3553(a) factors
justified the sentence it imposed.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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