     Case: 16-11417      Document: 00514146298         Page: 1    Date Filed: 09/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                    No. 16-11417
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                        September 7, 2017
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

JOSE OCHOA-CALEDO, also known as Ramiro Cerna-Gonzalez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-79-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jose Ochoa-Caledo pleaded guilty to illegal reentry in violation of 8
U.S.C. § 1326(a) and (b)(1)-(2). The presentence report (PSR) recommended an
advisory guidelines range of 24 to 30 months of imprisonment. The district
court sentenced Ochoa-Caledo to 40 months of imprisonment and three years
of supervised release. On appeal, Ochoa-Caledo challenges the procedural
reasonableness of his sentence.           In evaluating whether a district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       Case: 16-11417   Document: 00514146298   Page: 2   Date Filed: 09/07/2017


                                 No. 16-11417

committed a procedural error in the sentencing determination, we employ a de
novo standard of review. United States v. Garcia Mendoza, 587 F.3d 682, 688
(5th Cir. 2009).
        Ochoa-Caledo argues that the district court committed procedural error
by misapplying the provisions of the Guidelines governing departures in
determining that an upward departure was warranted under U.S.S.G. § 4A1.3,
p.s.    However, the record reflects that the district court imposed a non-
guidelines sentence or upward variance based on the 18 U.S.C. § 3553(a)
sentencing factors. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir.
2008). Therefore, Ochoa-Caledo’s arguments are inapposite.
        He also contends that the district court committed procedural error by
failing to adequately explain its decision to impose an upward variance. At
sentencing, the district court listened to the arguments and statements made
by defense counsel and Ochoa-Caledo. The district court also adopted the PSR
and the PSR Addendum, considered the § 3553(a) sentencing factors, and
stated reasons in support of the upward variance. Specifically, the district
court noted the “large number of occasions” in which Ochoa-Caledo “illegally
entered the United States.” The district court also stated that Ochoa-Caledo
had “quite a criminal history” and that none of his prior convictions received
criminal history points. Even if the district court “might have said more,” the
record makes clear that the court considered all of “the evidence and
arguments,” and its statement of reasons for the sentence imposed was “legally
sufficient.” Rita v. United States, 551 U.S. 338, 358-59 (2007).
        The judgment of the district court is AFFIRMED.




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