United States v. Ochoa ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40128
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR DE OCHOA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-00-CR-297-1)
August 31, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Hector De Ochoa appeals his sentence for his guilty-plea
conviction for conspiracy to possess with intent to distribute over
100 kilograms of marijuana. He challenges: 1) his offense level
being increased by two, based upon his aggravated role in the
offense; 2) a fine being imposed by the district court without
making a finding whether he had the ability to pay; 3) being
erroneously informed he faced a maximum four-year term of
supervised release at his guilty-plea hearing, but then being
*
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this opinion should not be published and is not precedent except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.
sentenced to five years of supervised release; and 4) the
indictment failing to allege a specific drug quantity.
Ochoa supervised at least two other participants in the
marijuana conspiracy; therefore, the district court did not clearly
err when it assessed a two-level increase under U.S.S.G. § 3B1.1(c)
for his role in the offense. See United States v. Parker, 133 F.3d
322, 329-30 (5th Cir. 1998); see also U.S.S.G. § 3B1.1, comment.
(nn.2 & 4) (“To qualify for an adjustment under this section, the
defendant must have been the organizer, leader, manager, or
supervisor of one or more other participants.... There can, of
course, be more than one person who qualifies as a leader or
organizer....”).
Ochoa challenges his fine for the first time on appeal;
therefore, we review this issue only for plain error. See United
States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994). A
sentencing court should impose a fine in all cases, unless the
defendant established an inability to pay. See U.S.S.G. §
5E1.2(a); United States v. Martinez, 151 F.3d 384, 395-96 (5th Cir.
1998), cert. denied, 525 U.S. 1031 (1998). Ochoa did not establish
such inability; furthermore, the record supports the district
court’s determination of Ochoa’s assets. In short, there is no
plain error.
The district court’s plea admonishment that Ochoa faced a
maximum four-year supervised release term was harmless error
because he was advised that the maximum period of possible
incarceration was 40 years. See United States v. Bachynsky, 934
2
F.2d 1349, 1359-60 (5th Cir. 1991) (en banc) (no reversible error
when “the aggregate maximum period of incarceration under the
actual sentence of imprisonment and supervised release cannot
exceed the statutory maximum explained to the defendant”), cert.
denied, 502 U.S. 951 (1991), modified on other grounds, United
States v. Johnson, 1 F.3d 296, 300-01 (5th Cir. 1993) (en banc).
Finally, the indictment alleged the offense involved more than
100 kilograms of marijuana. The imposition of the 70 months’
imprisonment and five-year term of supervised release was within
the statutory and Sentencing Guidelines range and, therefore, did
not present an issue under Apprendi v. New Jersey, 530 U.S. 466
(2000). See 21 U.S.C. § 841(b)(1)(B) (sentence between 5 and 40
years); U.S.S.G. § 5D1.2(a)(1) & (b) (supervised release); United
States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000), cert. denied,
121 S. Ct. 1152 (2001).
AFFIRMED
3