     Case: 12-50450       Document: 00512208714         Page: 1     Date Filed: 04/15/2013




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

                                                                            FILED
                                                                           April 15, 2013
                                     No. 12-50450
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FERNANDO OCHOA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1511-3


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Fernando Ochoa pleaded guilty to one count of conspiracy to transport
illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), (B)(iv), and three
counts of transporting illegal aliens, in violation of § 1324(a)(1)(A)(ii), (B)(i). The
district court imposed an upward variance of 216 months in prison on the
conspiracy count and a within-guidelines sentence of 60 months in prison, which
was the statutory maximum sentence, on each of the remaining counts. All four



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-50450

sentences were ordered to run concurrent. On appeal, Ochoa challenges his 216-
month sentence.
      We review sentences, whether inside or outside the guidelines range, for
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). We first examine
whether the district court committed any procedural errors, such as failing to
calculate or incorrectly calculating the advisory guidelines range or determining
the sentence based on “clearly erroneous facts.”           Id.   In making that
determination, we review the district court’s interpretation and application of
the Sentencing Guidelines de novo and its findings of fact for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). If no procedural
error occurred, we review “the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51.
      According to Ochoa, the district court committed a procedural error when
it increased his offense level by two levels pursuant to U.S.S.G. § 3C1.1 for
obstruction of justice. After considering the PSR, recordings of conversations
between Ochoa and others while Ochoa was in jail, and Ochoa’s testimony at his
sentencing, which the district court found to be untruthful, the district court
overruled Ochoa’s objection to the § 3C1.1 enhancement. Specifically, the
district court found that Ochoa attempted to delay the proceedings so as to
influence the material witnesses, attempted to find out information about the
border patrol agents assigned to his case, and attempted to coordinate his and
his co-defendants’ testimony. See § 3C1.1, comment. (n.4(a)). Ochoa has not met
his burden of demonstrating that the evidence relied upon by the district court
to determine that he obstructed justice was materially untrue, inaccurate, or
unreliable. See United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002). Nor
has he shown that the district court’s finding that he obstructed justice was
implausible in light of the record as a whole. See United States v. Ekanem, 555
F.3d 172, 175 (5th Cir. 2009). Therefore, Ochoa has not shown that the district



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court clearly erred in increasing his offense level under § 3C1.1. See United
States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008).
      Next, Ochoa argues that the district court committed a procedural error
when it failed to decrease his offense level pursuant to U.S.S.G. § 3E1.1 for
acceptance of responsibility. In its decision overruling Ochoa’s objection, the
district court found that Ochoa had not admitted to all of the elements of the
offenses of conviction. See § 3E1.1(a). Particularly troubling to the district court
were Ochoa’s repeated attempts to minimize his role in the offenses of
conviction. Thus, the district court concluded that Ochoa’s case was not the type
of “extraordinary” case which would qualify for adjustments under both § 3C1.1
and § 3E1.1. See Juarez-Duarte, 513 F.3d at 211; § 3E1.1, comment. (n.4).
Ochoa has failed to show that the district court’s decision was “without
foundation.” See Juarez-Duarte, 513 F.3d at 211.
      In his final point of alleged procedural error, Ochoa asserts that the
district court selected a sentence based on the following clearly erroneous facts:
(1) Ochoa ordered his codefendants to abandon the illegal alien who later died
in the brush off of Highway 277 in Texas; (2) he passed around pictures of the
“dead guy”; and (3) he failed to apologize or express remorse. The error, Ochoa
contends, is that his codefendant’s hearsay statement was not sufficient to prove
that he gave the order to leave the illegal alien behind.
      “Even uncorroborated hearsay evidence may be sufficiently reliable.”
United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996). While we have noted
that statements of codefendants are presumptively unreliable, United States v.
Flores, 985 F.2d 770, 776 (5th Cir. 1993), at sentencing “a district court has wide
discretion in determining which evidence to consider and which testimony to
credit,” United States v. Edwards, 65 F.3d 430, 432 (5th Cir. 1995).
      According to the PSR, Ochoa’s codefendant, Luis Francisco Ochoa Ramon
told investigators that Ochoa ordered his other codefendant, Ariel Alberto
Gonzalez Medina, to abandon the illegal alien in the brush. At sentencing,

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Ochoa testified that he never ordered anyone to leave the alien behind. The
district court rejected Ochoa’s testimony, finding it to be untruthful. In fact, the
district court found that Ochoa had been untruthful with respect to almost every
issue in the case. This court should defer to the district court’s credibility
determination. See Juarez-Duarte, 513 F.3d at 208. Furthermore, Ochoa’s self-
serving, contradictory statements were insufficient to rebut the information in
the PSR. See United States v. Londono, 285 F.3d 348, 355 (5th Cir. 2002);
United States v. Slaughter, 238 F.3d 580, 585 (5th Cir. 2000).
      Ochoa did not object to the district court’s factual findings regarding his
use of the picture or his lack of remorse. Accordingly, we review for plain error.
United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995). In this circuit,
“questions of fact capable of resolution by the district court upon proper objection
at sentencing can never constitute plain error.” United States v. Claiborne, 676
F.3d 434, 438 (5th Cir. 2012) (per curiam) (internal quotation marks, bracketing,
and citation omitted). Accordingly, Ochoa cannot show plain error in connection
with the foregoing factual findings. See id.
      With respect to substantive reasonableness, Ochoa first argues that his
sentence reflects an unwarranted disparity between him and his codefendants.
See 18 U.S.C. § 3553(a)(6) (indicating that a district court must consider “the
need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct”). Ochoa is not similarly
situated to his codefendants. Ochoa pleaded guilty to all four counts in the
indictment without a plea agreement. Each of Ochoa’s codefendants pleaded
guilty to count two of the indictment pursuant to a written plea agreement.
Furthermore, count two of the indictment carried with it a statutory maximum
sentence of 60 months in prison.       Ochoa has not shown that there is an
unwarranted sentencing disparity between himself and any of his codefendants
or between himself and any other similarly situated defendant. See United
States v. Candia, 454 F.3d 468, 476 (5th Cir. 2006).

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      Finally, Ochoa argues that his sentence is substantively unreasonable
based on the totality of the circumstances. See Brantley, 537 F.3d at 349. The
record in this case reflects that the district court considered the advisory
guidelines range, the policy statements, the parties’ arguments, Ochoa’s
statements, and several of the § 3553(a) factors, including (1) Ochoa’s history
and characteristics; (2) the nature and circumstances of the offenses of
conviction; (3) the need for the sentence to reflect the seriousness of the offense,
to promote respect for the law, to provide just punishment for the offense, to
afford adequate deterrence to criminal conduct, and to protect the public. The
district court thus made the individualized assessment required, see Gall, 552
U.S. at 50-51, concluding that a sentence above the advisory guidelines range
was required for the conspiracy count. Although Ochoa complains that his
criminal history was already taken into account by the Guidelines, the district
court was not precluded from considering factors already incorporated into the
guidelines calculation. See Brantley, 537 F.3d at 350.
      As for the deviation in this case, although it was significant, this court has
affirmed similar deviations. See, e.g., United States v. Key, 599 F.3d 469, 475-76
(5th Cir. 2010) (affirming a 216-month sentence when the applicable guidelines
range was 46 to 57 months); Brantley, 537 F.3d at 348-50 (affirming concurrent
terms of 120 months and 180 months of imprisonment from a range of 41 to 51
months); United States v. Smith, 417 F.3d 483, 492 & n.40 (5th Cir. 2005)
(affirming 120-month sentence from a guideline maximum of 41 months).
Ochoa’s arguments do not show that the district court failed to account for a
factor that should have received significant weight, gave significant weight to an
irrelevant or improper factor, or clearly erred in balancing the sentencing
factors. See United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). Instead,
the arguments constitute a mere disagreement with the district court’s weighing
of those factors. Given the significant deference that is due to a district court’s
consideration of the § 3553(a) factors and the district court’s reasons for its

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sentencing decision, Ochoa has not demonstrated that the sentence is
substantively unreasonable. See Gall, 552 U.S. at 50-53; Brantley, 537 F.3d at
349.
        AFFIRMED.




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