United States v. Sergio Perez-Ochoa

FILED
NOT FOR PUBLICATION DEC 17 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50089
Plaintiff - Appellee, D.C. No. 3:08-CR-02589-LAB
v.
MEMORANDUM *
SERGIO PEREZ-OCHOA, AKA Daniel
Perez-Soto,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Sergio Perez-Ochoa appeals from the 48-month sentence imposed following
his guilty-plea conviction for transporting illegal aliens and aiding and abetting, in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
Perez-Ochoa contends that the district court erroneously imposed concurrent
enhancements under U.S.S.G. §§ 2L1.1(b)(6) and 3C1.2 based on the same
conduct. This contention is belied by the record. See United States v. Dixon, 201
F.3d 1223, 1234 (9th Cir. 2000).
Perez-Ochoa also contends that the district court procedurally erred by
relying on clearly erroneous facts, failing to consider his mitigation arguments, and
focusing unduly on the goals of protection of the public and deterrence. He also
contends that his sentence is substantively unreasonable. The record reflects that
the district court did not procedurally err and the sentence imposed is substantively
reasonable in light of the totality of the circumstances. See United States v. Carty,
520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).
Finally, Perez-Ochoa contends that the district court violated his due process
rights when it sentenced him based on unfounded speculation regarding his prior
criminal history. This contention is belied by the record. See United States v.
Romero-Rendon, 220 F.3d 1159, 1165 (9th Cir. 2000) (holding that an unchalleged
presentence report is sufficient evidence to increase a defendant’s sentence); see
also United States v. Robelo, 596 F.2d 868, 870 (9th Cir. 1979) (holding that the
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district court did not violate due process by basing its sentencing decision on
reasonable inferences from the facts before it).
Perez-Ochoa’s second motion for an extension of time to file the reply brief
is granted.
AFFIRMED.
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