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 2019-02

United States v. Magdaleno Ochoa ( 2019 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        FEB 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                       No.    17-50325
Plaintiff-Appellee,             D.C. No.
2:16-cr-00454-DSF-1
v.
MAGDALENO OCHOA, AKA Manuel                     MEMORANDUM*
Ruiz Ochoa,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted February 7, 2019**
Pasadena, California
Before: GOULD, NGUYEN, and OWENS, Circuit Judges.
Defendant-Appellant Magdaleno Ochoa appeals from his conviction under
    8 U.S.C. § 1326
     for being a previously removed noncitizen found illegally in the
United States. As the parties are familiar with the facts, we do not recount them
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
here. We have jurisdiction under
    28 U.S.C. § 1291
    , and we affirm.
1. Ochoa argues that the district court erred in denying his motion to
exclude his statements to a deportation officer in 2012 regarding his parents’
citizenship because the statements were not preceded by Miranda warnings. We
review de novo whether a defendant was constitutionally entitled to Miranda
warnings and a trial court’s denial of a motion to suppress. See United States v.
Craighead,
    539 F.3d 1073
    , 1082 (9th Cir. 2008).
Although Ochoa was in custody when questioned, he was not
constitutionally entitled to Miranda warnings. The questioning was part of a
routine, administrative interview to determine Ochoa’s deportability after his
release from prison. The interview was unrelated to why Ochoa was then in
custody, and the officer had no prosecutorial intention. See United States v.
Salgado,
    292 F.3d 1169
    , 1172 (9th Cir. 2002). Nor could the officer have
anticipated that Ochoa would again illegally reenter and his statements would be
incriminating years later. See United States v. Solano-Godines,
    120 F.3d 957
    , 962
(9th Cir. 1997).
Moreover, even if this were a Miranda violation, admission of Ochoa’s
statements was harmless error. See United States v. Gonzalez-Sandoval,
    894 F.2d 1043
    , 1047-48 (9th Cir. 1990). The government introduced sufficient other
evidence to prove Ochoa’s alienage at trial.
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2. Ochoa also contends that the district court erred in considering “judicial
and administrative efficiency” when it imposed a supervised release term.
Because Ochoa did not raise this issue below, we review for plain error. See
United States v. Olano,
    507 U.S. 725
    , 732-34 (1993). Ochoa fails to show this was
a plain error or affected his substantial rights.
    Id. at 732
    . The district court
concluded that supervised release was necessary primarily because of deterrence
and public safety, enumerated considerations under
    18 U.S.C. § 3553
    (a). Its
passing mention of efficiency as an additional benefit was immaterial. There was
also no “reasonable probability” that Ochoa’s sentence would have differed
without the court’s “efficiency” consideration, particularly given that Ochoa
requested the three-year probation term. See United States v. Tapia,
    665 F.3d 1059
    , 1061 (9th Cir. 2011).
AFFIRMED.
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