United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10458

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Martin Ochoa-Perez, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 2:22-CR-68-1 

______________________________

Before Jolly, Engelhardt, and Douglas, Circuit Judges. 

Per Curiam:*

Martin Ochoa-Perez, under a written agreement, pleaded guilty to 

illegal reentry following a prior removal, in violation of 8 U.S.C. § 1326(a) 

and (b)(1). His 115-month prison sentencewas within the advisory guidelines 

sentencing range. Ochoa-Perez has timely appealed this sentence. 

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* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

March 13, 2024

Lyle W. Cayce

Clerk

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No. 23-10458

2

Ochoa-Perez first argues that the district court’s treatment of his prior 

convictions as a sentencing factor rather than an element of the offense under 

§ 1326(b)(1) violated the Sixth Amendment. He concedes, however, that this 

argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 

226-27 (1998). He raises the issue only to preserve it for possible further 

review.

Ochoa-Perez next challenges the substantive reasonableness of his 

within-guidelines sentence. Such a sentence is presumptively reasonable. 

See United States v. Hernandez, 876 F.3d 161, 166 (5th Cir. 2017). In 

challenging the substantive reasonableness of his sentence, however, he 

assigns two points of error: (1) the district court erroneously found that his 

prior Texas convictions for delivery of a controlled substance under Texas 

Health and Safety Code § 481.112(a) were aggravated felonies under 

8 U.S.C. § 1101(a)(43)(B), and (2) the district court improperly sentenced 

him at the top end of the guidelines range because the district court 

considered his “reduced sentencing exposure”.

1

 In other words, OchoaPerez asserts that he should have received a sentence at the bottom of the 

guidelines range and the district court erred by sentencing him to the top end 

of guidelines range. He attributes this error to the district court’s passing 

comment that his attorney reduced his sentencing exposure.

As Ochoa-Perez concedes, our review is for plain error. See United 

States v. Zarco-Beiza, 24 F.4th 477, 481-82 (5th Cir. 2022). Our review 

persuades us that the district court did not clearly err in observing that

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1 The presentence report (“PSR”) noted that Ochoa-Perez could have faced a 

maximum penalty of twenty years imprisonment pursuant to § 1326(b)(2). He avoided this 

lengthy sentencing provision by agreeing to plead to § 1326(b)(1), a statute that was also 

applicable but provided for only ten years imprisonment. Ochoa-Perez is correct that the 

district court, at the sentencing hearing, noted that Ochoa-Perez’s attorney had negotiated

with the government a plea bargain with the lesser penalty. 

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Ochoa-Perez could have been sentenced to a 240-month maximum under § 

1326(b)(2) absent the terms of his plea agreement because his convictions 

under § 481.112(a) are aggravated felonies. See Puckett v. United States, 556 

U.S. 129, 135 (2009); Ochoa-Salgado v. Garland, 5 F.4th 615, 620–22 (5th Cir. 

2021); Alexis v. Barr, 960 F.3d 722, 726–29 (5th Cir. 2020). To be clear, 

Ochoa-Perez was neither indicted nor sentenced under § 1326(b)(2). The 

PSR and the district court merely noted that, based on Ochoa-Perez’s prior 

convictions under § 481.112(a), he could have been indicted under this 

statute. 

Additionally, Ochoa-Perez has not shown that the district court’s 

consideration of his reduced sentence under § 1326(b)(1) was clearly 

erroneous. See United States v. Gozes-Wagner, 977 F.3d 323, 348 (5th Cir. 

2020); United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009). OchoaPerez speculates that he received a sentence at the higher end of the 

guidelines range because the district court commended his attorney for 

negotiating a plea bargain that reduced the maximum penalty he faced from 

240 months to 120 months. This factor, he alleges, influenced the judge to 

sentence him at the top end of the guidelines range.

2 This argument, 

however, lacks support from the record. 

The district court properly relied on the 18 U.S.C. § 3553(a) factors to 

determine the proper sentence. In explaining its choice of sentence, the 

district court identified three aggravating § 3553(a) factors: Ochoa-Perez’s 

criminal history, the nature and circumstances of the offense, and providing

just punishment for the offense. The district court stated that it had balanced 

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2 According to the PSR, the calculated range of imprisonment was 92–115 months 

under the Sentencing Guidelines. As we noted above, the district court sentenced OchoaPerez to an imprisonment term of 115 months. 

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those factors with other, “significant mitigating factors” and imposed the 

sentence it felt was appropriate irrespective of the advisory guidelines range. 

 On plain-error review, Ochoa-Perez has not met his burden of 

overcoming the presumption of reasonableness afforded to his withinguidelines sentence. See Puckett, 556 U.S. at 135; Hernandez, 876 F.3d at 166; 

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Nor has he shown 

that any error affected his substantial rights. See United States v. EscalanteReyes, 689 F.3d 415, 424 (5th Cir. 2012) (en banc). Accordingly, the 

judgment of the district court is, in all respects,

AFFIRMED.

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