                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2009

USA v. Antonio Ochoa-Hernan
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1673




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                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       ____________

                            No. 08-1673
                           ____________

                 UNITED STATES OF AMERICA

                                 v.

                ANTONIO OCHOA-HERNANDEZ,
                           a/k/a
                ANTONIO CHORA-HERNANDEZ,
                           a/k/a
                 ALBERTO MARTINEZ-PEREZ,
                           a/k/a
                JOSE MANUEL ORTIZ-MENDEZ

                      Antonio Ochoa-Hernandez,

                                    Appellant
                           ____________

           On Appeal from the United States District Court
               for the Middle District of Pennsylvania
                    (D.C. No. 1-07-cr-00311-001)
            District Judge: Honorable John E. Jones, III
                           ____________

           Submitted Pursuant to Third Circuit LAR 34.1(a)
                           April 23, 2009

Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges.

                       (Filed: April 29, 2009)
                           ____________

                    OPINION OF THE COURT
                         ____________
FISHER, Circuit Judge.

       This appeal arises out of Antonio Ochoa-Hernandez’s guilty plea and subsequent

sentence of 41 months’ imprisonment for illegal reentry into the United States by a

previously deported alien following conviction of an aggravated felony in violation of 8

U.S.C. § 1326(a) and (b)(2). After Ochoa-Hernandez filed a timely pro se notice of

appeal, his counsel filed a brief and motion to withdraw representation pursuant to Anders

v. California, 386 U.S. 738 (1967). For the reasons that follow, we will grant counsel’s

Anders motion and affirm Ochoa-Hernandez’s conviction and the District Court’s

judgment of sentence.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       A Pennsylvania State Trooper encountered a disabled van on the Pennsylvania

Turnpike on July 9, 2007, and, in rendering assistance to the van’s occupants, discovered

that the driver and passengers, including Ochoa-Hernandez, were in the United States

illegally. Ochoa-Hernandez was taken into custody by U.S. Immigration and Customs

Enforcement, after which its officers learned that he had previously been deported from

the United States three times and that he had been convicted in Washington State of

delivery of and conspiracy to deliver methamphetamine over ten years earlier. Ochoa-

                                              2
Hernandez was indicted on one count of illegal reentry into the United States by a

previously deported alien following conviction of an aggravated felony, in violation of 8

U.S.C. § 1326(a) and (b)(2), to which he pled guilty pursuant to a written plea agreement

with the Government.

       The U.S. Probation Office prepared a Presentence Investigation Report, which the

District Court adopted without change. Under the U.S. Sentencing Guidelines, Ochoa-

Hernandez’s total offense level was 21, including a three-level reduction for acceptance

of responsibility pursuant to his plea agreement, and his criminal history was category III.

Based on these calculations, his advisory Guidelines range was 46 to 57 months’

imprisonment. At sentencing on February 26, 2008, the District Court granted a variance

because Ochoa-Hernandez had no history of violence and had stayed “relatively crime-

free” for a long time period after his one drug conviction. It imposed a sentence of 41

months’ imprisonment, as well as a special assessment totaling $100 and supervised

release for a term of three years. This sentence is below the statutory maximum sentence

of twenty years, as set forth in 8 U.S.C. § 1326(b)(2). Ochoa-Hernandez filed a timely

pro se notice of appeal. Concluding that there were no nonfrivolous issues to appeal, his

trial counsel filed a motion to withdraw and a supporting brief. Ochoa-Hernandez did not

file a pro se brief.




                                             3
                                              II.

       We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). In Anders, the Supreme Court held that “if counsel finds his [client’s

appeal] to be wholly frivolous, after a conscientious examination of it, he should so

advise the court and request permission to withdraw.” 386 U.S. at 744. In doing so,

counsel must submit a brief addressing any issue that “might arguably support the

appeal.” Id.; see also L.A.R. 109.2(a).1 We must then ascertain whether the appeal is

“wholly frivolous.” Anders, 386 U.S. at 744. In making this determination, we evaluate:

“(1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an

independent review of the record presents any nonfrivolous issues.” United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001).

                                             III.

                                              A.

       Under the first prong of this inquiry, counsel must “satisfy the court that [he] has

thoroughly examined the record in search of appealable issues, and . . . explain why the

issues are frivolous.” Id. In his brief, counsel addressed the following three issues:

whether the District Court had jurisdiction to enter Ochoa-Hernandez’s conviction and


       1
        Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, upon review
of the district court record, trial counsel is persuaded that the appeal presents no issue of
even arguable merit, trial counsel may file a motion to withdraw and supporting brief
pursuant to Anders v. California, 386 U.S. 738 (1967), which shall be served upon the
appellant and the United States” (citations omitted).

                                              4
impose sentence on him; whether Ochoa-Hernandez’s guilty plea was valid and

voluntary; and whether Ochoa-Hernandez’s sentence was legal and reasonable. Counsel

also provided an explanation as to why each of these issues is frivolous. Having reviewed

counsel’s brief and the accompanying materials, we conclude that he has met this

requirement.

                                              B.

       After determining that counsel has satisfied the first prong, we must then review

the record and independently determine whether any nonfrivolous issues for appeal exist.

“[A]n appeal on a matter of law is frivolous where ‘[none] of the legal points [are]

arguable on their merits.’” Neitzke v. Williams, 490 U.S. 319, 325 (1989) (alterations in

original) (quoting Anders, 386 U.S. at 744). Although our review is independent, if the

Anders brief appears to be adequate on its face, a “complete scouring of the record” is

unnecessary. Youla, 241 F.3d at 301. Instead, we can allow the Anders brief to guide our

review. Id. In the present case, counsel’s Anders brief is adequate on its face and, thus, it

will guide our review.

       First, counsel raises the issue of the District Court’s jurisdiction to enter Ochoa-

Hernandez’s conviction and impose sentence on him. Because the District Court has

subject-matter jurisdiction over all offenses against the laws of the United States under 18

U.S.C. § 3231, which includes the offense at issue in this case, we agree with counsel that

any challenge to the District Court’s jurisdiction is meritless.



                                              5
       Second, counsel raises the issue of whether Ochoa-Hernandez’s guilty plea was

valid and voluntary. For a guilty plea to meet the constitutional requirements established

in Boykin v. Alabama, 395 U.S. 238 (1969), and the statutory requirements of Federal

Rule of Criminal Procedure 11, we have stated that during the plea colloquy:

       “The court must advise the defendant, inter alia, of the waiver of certain
       constitutional rights by virtue of a guilty plea, the nature of the charges to
       which he or she is pleading guilty, the maximum possible penalty to which
       he or she is exposed, the court’s obligation to apply the Sentencing
       Guidelines [and] . . . discretion to depart from those guidelines under some
       circumstances, and the terms of any plea-agreement provision waiving the
       right to appeal or to collaterally attack the sentence. The district court must
       ensure that the defendant receives these caveats, understands them, and still
       wishes of his or her own volition to plead guilty.”

United States v. Schweitzer, 454 F.3d 197, 202-03 (3d Cir. 2006) (alterations in original)

(internal quotation marks and citations omitted). After reviewing the transcript of the

plea colloquy, we conclude that the District Court thoroughly advised Ochoa-Hernandez

of all of the above issues, that Ochoa-Hernandez indicated that he understood the

consequences of his plea, and that he entered his plea knowingly and voluntarily.

Therefore, this issue lacks merit.

       Finally, we agree with counsel that no nonfrivolous issues to appeal exist as to

Ochoa-Hernandez’s sentence, which we examine for procedural and substantive

reasonableness under an abuse of discretion standard pursuant to Gall v. United States,

128 S. Ct. 586, 597 (2007). As required by United States v. Gunter, 462 F.3d 237, 247

(3d Cir. 2006), the District Court properly calculated Ochoa-Hernandez’s Guidelines



                                              6
range as 46 to 57 months’ imprisonment, correctly determined there were no pending or

applicable motions for departure and thus did not grant any, and then exercised its

discretion by considering the relevant 18 U.S.C. § 3553(a) factors, ultimately granting a

variance and imposing a below-Guidelines sentence of 41 months’ imprisonment.

Moreover, there is no basis on which to conclude that Ochoa-Hernandez’s sentence was

substantively unreasonable in light of the District Court’s meaningful consideration and

application of the § 3553(a) factors. See United States v. Cooper, 437 F.3d 324, 329 (3d

Cir. 2006). Accordingly, our independent review of the record demonstrates that Ochoa-

Hernandez has no nonfrivolous issues for appeal.

                                              IV.

       For the aforementioned reasons, we will grant Ochoa-Hernandez’s counsel’s

Anders motion and affirm the sentence imposed by the District Court.2




       2
        As a result, we conclude that it is not necessary to appoint counsel to file a
petition for rehearing in this Court or a petition for writ of certiorari in the United States
Supreme Court on Ochoa-Hernandez’s behalf. See L.A.R. 109.2(b).

                                               7
