United States v. Ochoa-Montano, No. 16-1849

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFONSO OCHOA-MONTANO, Defendant-Appellant.
Decision Date09 December 2016
Docket NumberNo. 16-1849

ALFONSO OCHOA-MONTANO, Defendant-Appellant.

No. 16-1849

United States Court of Appeals For the Seventh Circuit

Argued November 15, 2016
December 9, 2016

To be cited only in accordance with Fed.
R. App. P. 32.1

Before DIANE P. WOOD, Chief Judge WILLIAM J. BAUER, Circuit Judge DIANE S. SYKES, Circuit Judge

Appeal from the United States District Court for the Southern District of Illinois.

No. 3:15-CR-30140-SMY

Staci M. Yandle, Judge.


Alfonso Ochoa-Montano, a native and citizen of Mexico, pleaded guilty to being in the United States without authorization after his removal. See 8 U.S.C. § 1326(a). He had been removed from the country four times, most recently in 2002 after a federal conviction for money laundering, an aggravated felony under the Immigration and Nationality Act. See 18 U.S.C. § 1957; 8 U.S.C. § 1101(a)(43)(D). He thus faced a statutory maximum of 20 years' imprisonment. See 8 U.S.C. § 1326(b)(2). The district court sentenced him at the top of the Guidelines range to 24 months. On appeal Ochoa-Montano contends that the judge overemphasized the need to deter future violations of § 1326(a) and gave too little weight to other sentencing factors. We reject this argument.

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Ochoa-Montano was arrested in 2015 for a traffic offense in southern Illinois, and local police turned him over to immigration authorities. Before this arrest he had been removed from the United States four times. The first three times—twice in 1999 and again in 2000—he departed voluntarily after being detained. When he returned to the United States after the third voluntary departure, he was paid by a smuggler to harbor aliens who were on their way to other locations. He was caught and convicted in 2001 of money laundering, then removed on March 27, 2002, immediately after completing his 15-month sentence. He returned to the United States just days later.

Ochoa-Montano pleaded guilty to a charge of being unlawfully present in the United States following removal in violation of § 1326(a). He told a probation officer that he has three children living with ex-wives in Mexico and three more children in the United States. His three U.S. citizen children were born after he last entered the United States unlawfully. Ochoa-Montano was apparently living with the children's mother (a Mexican citizen) and her 17-year-old son from another relationship (also a Mexican citizen). Ochoa-Montano also told the probation officer that the couple's two oldest children are enrolled in special-needs classes at school and that the youngest, then 9, suffers from birth defects that have left him completely disabled and in need of full-time care. According to Ochoa-Montano, the 17-year-old left school to help support the family. The probation officer was unable to verify any of this information (language barriers prevented communication with Ochoa-Montano's girlfriend). Nor could the probation officer verify the defendant's claim of long-term employment with a flooring company; the company's accountant said that Ochoa-Montano had never worked there. Ochoa-Montano promised to supply medical records for his son but he never did.

The probation officer calculated a Guidelines imprisonment range of 18 to 24 months based on a total offense level of 13 and a criminal history category of III. She concluded her report by saying that she had "not identified any factors that would warrant a departure from the applicable sentencing guidelines range," though she also acknowledged that the district court could "consider a variance and impose a non-guideline sentence" based on the factors in 18 U.S.C. § 3553(a). At sentencing the district judge adopted the presentence report without objection. The judge then announced that she did not "intend to depart for any reason noted in the [G]uidelines manual" but would, "as always, consider the possibility of the appropriateness of any variances pursuant to 18 U.S.C. § 3553(a)." The government recommended a low-end sentence of 18 months to deter Ochoa-Montano from doing "exactly the same thing he's been doing for nine years." Defense counsel argued for either time served or a year and a day in prison. Neither side offered testimony or other evidence.

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Defense counsel asked the judge to consider that the § 1326(a) violation was nonviolent and argued that the crime was mitigated by Ochoa-Montano's current family situation: The family lived in poverty and faced eviction, his youngest son is disabled and requires full-time medical attention, and his stepson had quit school to support his disabled brother. Counsel further asserted that Ochoa-Montano had known it was a crime to return to the United States but did so to help his family (though his children in the United States had not yet been born when he reentered in 2002, and his other children were in Mexico). Counsel insisted that Ochoa-Montano's criminal history was...

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