United States v. Sergio Sanchez-Ochoa ( 2019 )

FILED
NOT FOR PUBLICATION
AUG 19 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10162
Plaintiff-Appellee, D.C. No.
4:16-cr-02213-RCC-JR-1
v.
SERGIO SANCHEZ-OCHOA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Submitted August 15, 2019**
Pasadena, California
Before: CALLAHAN and CHRISTEN, Circuit Judges, and WU,*** District Judge.
Sanchez-Ochoa appeals the district court’s judgment of conviction and
sentence for illegal reentry in violation of 8 U.S.C. § 1326. Because the parties are
*
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).
***
The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
familiar with the facts, we do not repeat them here. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.
1. The district court did not err by denying Sanchez-Ochoa’s motion for
judgment of acquittal. As an initial matter, Sanchez-Ochoa’s collateral attack
pursuant to 8 U.S.C. § 1326(d) was untimely because he failed to challenge his
underlying 2013 expedited removal order in a pre-trial motion to dismiss. See
United States v. Lopez, 762 F.3d 852, 858 (9th Cir. 2014). Even if Sanchez-
Ochoa’s collateral attack were timely, he must demonstrate that the underlying
expedited removal proceeding was fundamentally unfair, i.e., that the proceeding
violated his due process rights and that he suffered prejudice as a result. See
United States v. Raya-Vaca, 771 F.3d 1195, 1202, 1206 (9th Cir. 2014). Assuming
without deciding that a due process violation occurred, to demonstrate prejudice
Sanchez-Ochoa must show that “he had plausible grounds for relief” from removal.
Id. at 1206. Given Sanchez-Ochoa’s 2001 removal, his 2012 illegal reentry
conviction, and his lengthy felony record, we conclude that he does not
demonstrate plausible grounds for relief. See United States v. Flores, 901 F.3d
1150, 1162–63 (9th Cir. 2018).
2. Sanchez-Ochoa also argues that the district court’s return of the bench
trial verdict in his absence violated the Sixth Amendment and Federal Rule of
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Criminal Procedure 43(a). Because Sanchez-Ochoa did not object to the district
court’s verdict on these grounds, we review for plain error. “Plain error is (1)
error, (2) that is plain, [] (3) that affects substantial rights,” and that “[(4)]seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009) (internal quotation marks
omitted). Even assuming that Sanchez-Ochoa demonstrates error that is plain, he
does not show that any error affected his substantial rights. An error affects
substantial rights if the defendant can demonstrate “a reasonable probability that,
but for the error, the outcome of the proceeding would have been different.”
United States v. Ornelas, 906 F.3d 1138, 1143 (9th Cir. 2018) (internal quotation
marks omitted). Here, the evidence shows that Sanchez-Ochoa committed illegal
reentry in violation of § 1326, and he does not argue that his physical presence for
the return of the verdict would have altered the outcome of the bench trial. We
therefore conclude that the district court’s return of the verdict in Sanchez-Ochoa’s
absence was not plain error.
3. Last, Sanchez-Ochoa argues that the district court erred by imposing a
sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(3)(B), which authorizes
an eight-level enhancement if, after a defendant was ordered removed for the first
time, the defendant engages in criminal conduct resulting in a felony conviction
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(other than illegal reentry) for which the sentence was two years or greater. The
district court imposed this enhancement because Sanchez-Ochoa was removed in
2001 and was subsequently convicted of felony possession of a firearm in 2003,
which resulted in a forty-one month sentence. Sanchez-Ochoa argues that the
imposition of this enhancement requires satisfaction of the clear and convincing
standard, and that the 2001 deportation as alleged in the Pre-Sentence Report
(PSR) was never charged or proven and therefore lacks factual proof.
The record shows that Sanchez-Ochoa objected to the eight-level
enhancement because he thought the enhancement was premised on his allegedly
invalid 2013 expedited removal order. But probation responded in a PSR
addendum that the enhancement was based on Sanchez-Ochoa’s 2001 removal and
his 2003 felony conviction. Sanchez-Ochoa did not object to the facts of his 2001
removal or 2003 conviction, and absent objection, the district court was entitled to
rely on these undisputed statements in the PSR. See United States v. Ameline, 409
F.3d 1073, 1085 (9th Cir. 2005). Therefore, we conclude that the district court did
not err by imposing the eight-level sentence enhancement.
AFFIRMED.
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