United States v. Johnny Ochoa, Jr. ( 2017 )

Case: 15-50634 Document: 00514065317 Page: 1 Date Filed: 07/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 15-50634 FILED
Summary Calendar July 10, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHNNY OCHOA, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:10-CR-85-2
Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
Johnny Ochoa, Jr., federal prisoner # 58242-280, was convicted by a jury
of conspiracy to possess with intent to distribute five kilograms or more of
cocaine and unlawful use of a communication facility; he received a sentence
of 235 months in prison for the drug offense. On direct appeal, we held that
the district court had elected not to apply the mandatory minimum 20-year
sentence under 21 U.S.C. § 841(b)(1) despite determining that the Government
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-50634
had sufficiently proved that Ochoa had a prior felony drug conviction and that
the 235-month sentence was a reasonable within-guidelines sentence. United
States v. Ochoa, 667 F.3d 643, 650-51 (5th Cir. 2012).
In 2014, Ochoa filed the instant 18 U.S.C. § 3582(c)(2) motion, asserting
that his sentence should be decreased pursuant to Amendment 782 of the
Guidelines. The district court originally denied the motion, concluding that
Ochoa was not eligible for a reduction because his original and amended
guidelines range remained the statutory minimum sentence of 240 months in
prison. During the briefing process, we granted the Government’s motion for
a limited remand. At that time, the district court concluded that Ochoa was
eligible for a two-level offense level reduction, that the newly applicable
guidelines range was 151-188 months in prison, and that a sentence of 188
months was appropriate.
We review a district court’s decision whether to reduce a sentence under
§ 3582(c)(2) for abuse of discretion. United States v. Henderson, 636 F.3d 713,
717 (5th Cir. 2011). On remand, the district court granted Ochoa’s requested
relief by awarding him the two-level sentencing reduction and imposing a
lower sentence. Although Ochoa had requested a sentence at the bottom of the
newly applicable guidelines range, the district court was under no obligation
to grant him any sentence reduction, much less a lower sentence within the
recalculated range. See United States v. Evans, 587 F.3d 667, 673 (5th Cir.
2009).
In his reply brief, Ochoa argues that, when calculating the newly
applicable range under Amendment 782, the district court should have first
subtracted a two-level enhancement resulting from his prior felony drug
conviction. We decline to consider arguments made for the first time in a reply
brief. See United States v. Daniel, 957 F.2d 162, 170 n.6 (5th Cir. 1992).
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Moreover, the district court did not impose an enhancement to the base offense
level because of Ochoa’s prior conviction.
Ochoa has not established that the district court abused its discretion in
granting his § 3582(c)(2) motion and in reducing his sentence to 188 months in
prison. Accordingly, the judgment of the district court is AFFIRMED.
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