United States v. Pedro Ochoa , 547 F. App'x 189 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4236
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PEDRO OCHOA, a/k/a Pepe,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard Mark Gergel, District
Judge. (2:10-cr-01104-RMG-1)
Submitted: October 30, 2013 Decided: November 21, 2013
Before AGEE, DAVIS, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South
Carolina, for Appellant. Peter Thomas Phillips, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pedro Ochoa pled guilty pursuant to a plea agreement
to conspiracy to distribute and possess with intent to
distribute five kilograms or more of cocaine in violation of 21
U.S.C. § 846 (2006) and conspiracy to commit money laundering in
violation of 18 U.S.C. § 1956(h) (2006). Pursuant to a downward
departure for substantial assistance and a variance, the court
sentenced Ochoa to a term of 120 months’ imprisonment. Counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious issues for
appeal but questioning whether Ochoa’s guilty plea colloquy
substantially complied with Fed. R. Crim. P. 11 and whether his
sentence is reasonable. Although Ochoa was informed of his
right to file a pro se supplemental brief, he has not done so.
Finding no error, we affirm.
Prior to accepting a guilty plea, a trial court,
through colloquy with the defendant, must inform the defendant
of, and determine that the defendant understands, the nature of
the charge to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty he faces, and the various
rights he is relinquishing by pleading guilty. Fed. R. Crim. P.
11(b)(1). The court also must ensure that the defendant’s plea
was voluntary, was supported by a sufficient factual basis, and
did not result from force, threats, or promises not contained in
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the plea agreement. Fed. R. Crim. P. 11(b)(2), (3). “In
reviewing the adequacy of compliance with Rule 11, this court
should accord deference to the trial court’s decision as to how
best to conduct the mandated colloquy with the defendant.”
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Because Ochoa did not move to withdraw his guilty plea
in the district court or raise any objections during the Rule 11
colloquy, the plea colloquy is reviewed for plain error. United
States v. General, 278 F.3d 389, 393 (4th Cir. 2002). To
demonstrate plain error, a defendant must show that: (1) there
was an error; (2) the error was plain; and (3) the error
affected his “substantial rights.” United States v. Olano, 507
U.S. 725, 732 (1993). Upon a thorough review of the record, we
conclude that the district court substantially complied with
Rule 11 and that Ochoa’s plea was knowing and voluntary. Though
the district court did not inform Ochoa of the government’s
right, in a prosecution for perjury or false statement, to use
any statement Ochoa made under oath against him, Fed. R. Crim.
P. 11(b)(1)(A), we conclude that this error did not affect
Ochoa’s substantial rights.
Next, we review Ochoa’s sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). In so doing we first examine
the sentence for significant procedural error, including whether
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the district court properly calculated the defendant’s advisory
Guidelines range, considered the parties’ arguments in light of
the 18 U.S.C. § 3553(a) (2006) factors, selected a sentence
based on clearly erroneous facts, and adequately explained the
selected sentence. Id. When considering the substantive
reasonableness of the sentence, we “take into account the
totality of the circumstances.” Id. If the sentence is within
or below the properly calculated Guidelines range, we presume on
appeal that the sentence is reasonable. United States v. Yooho
Weon, 722 F.3d 583, 590 (4th Cir. 2013). Upon our review, we
conclude that Ochoa’s below-Guidelines sentence is both
procedurally and substantively reasonable.
In accordance with Anders, we have reviewed the record
in this case and found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Ochoa, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Ochoa requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Ochoa. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before this court and argument would not aid the
decisional process.
AFFIRMED
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