United States v. Jordy Ochoa , 514 F. App'x 643 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 25 2013
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. 11-50537
Plaintiff - Appellee, D.C. No. 2:11-cr-00603-SVW-1
v.
MEMORANDUM *
JORDY EZEQUIEL OCHOA, AKA Jordy
Ochoa, AKA Jordy Ezequil Ochoa-
Cordova,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted February 5, 2013
Pasadena, California
Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.
Jordy Ezequiel Ochoa (“Ochoa”) appeals his conviction and sentence
following a guilty plea to one count of illegal reentry following deportation, in
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
affirm his conviction through a guilty plea, vacate his sentence, and remand for
resentencing.
1. Ochoa claims that his guilty plea was not knowing, voluntary, and
intelligent, because the district court failed to discuss the sentencing guidelines and
other sentencing factors under 18 U.S.C. § 3553(a), as required by Federal Rule of
Criminal Procedure 11(b)(1)(M). Because Ochoa failed to raise this issue below,
we review for plain error. United States v. Collins, 684 F.3d 873, 881 (9th Cir.
2012). Although the district court violated Rule 11(b)(1)(M), the error did not
affect Ochoa’s substantial rights. See United States v. Borowy, 595 F.3d 1045,
1049 (9th Cir. 2010) (“To show that the error affected his substantial rights,
[defendant] must prove that there is a reasonable probability that, but for the error,
he would not have entered the plea.” (internal quotation marks omitted)). The
government’s overall case was strong, and Ochoa failed to identify any defenses.
Further, by the time of the sentencing hearing, Ochoa was clearly aware of how the
sentencing guidelines operated; yet, he did not withdraw his plea. Viewing the
entire record, we find that the district court’s error was inconsequential to Ochoa’s
decision to plead guilty. See id. (stating that in determining whether the error
affected substantial rights, we consider the overall strength of the government’s
case and any possible defenses, evidence showing that any misunderstanding was
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inconsequential to the defendant’s decision, and evidence that might have affected
the defendant’s choice regardless of any Rule 11 error). Because Ochoa has failed
to establish plain error, we affirm his conviction.
2. Next, Ochoa argues that the district court plainly erred by concluding
that his conviction under Cal. Penal Code § 12021(a)(1) qualified as an aggravated
felony.1 We agree. To determine whether a particular offense qualifies as an
aggravated felony, the district court must apply the Taylor categorical and
modified categorical frameworks. Carlos-Blaza v. Holder, 611 F.3d 583, 587–88
(9th Cir. 2010); Young v. Holder, 697 F.3d 976, 982 (9th Cir. 2012) (stating that
Taylor “establish[es] the rules by which the government may use prior state
convictions to enhance certain federal sentences and to remove certain aliens”).
The district court’s failure to do so clearly affects Ochoa’s substantial rights and
the fairness of the judicial proceeding, because the record is insufficient to
establish that Ochoa was convicted of an aggravated felony. Therefore, we vacate
the sentence. Because the matter is remanded for sentencing, we need not reach
Ochoa’s remaining sentencing claims.
1
The government argues that, because defense counsel conceded below, the
invited error doctrine bars review of the district court’s decision. We disagree
because there is no evidence that Ochoa “deliberately waived” his right to
challenge this determination. See United States v. Gallegos-Galindo, 704 F.3d
1269 (9th Cir. 2013).
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3. We deny the government’s request for judicial notice of the verdict
form and the jury instructions given in Ochoa’s state court proceedings. Whether
these documents show that Ochoa was convicted of possession of a firearm, rather
than ownership of the firearm, is subject to reasonable dispute. Fed. R. Evid.
201(b) (“The court may judicially notice a fact that is not subject to reasonable
dispute . . . .”). On remand, the parties may submit documents permissible under
Shepard v. United States, 544 U.S. 13, 26 (2005). See United States v.
Castillo-Marin, 684 F.3d 914, 927 (9th Cir. 2012) (permitting the government to
submit additional documents on remand).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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