USA v. Ochoa-Fabian, No. 21-51121 (5th Cir. 2022)

Annotate this Case
Download PDF
Case: 21-51100 Document: 00516274039 Page: 1 Date Filed: 04/08/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 8, 2022 No. 21-51100 consolidated with No. 21-51121 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jose Fernando Ochoa-Fabian, Defendant—Appellant. Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-502-1 USDC No. 4:21-CR-638-1 Before King, Costa, and Ho, Circuit Judges. Per Curiam:* Jose Fernando Ochoa-Fabian appeals his conviction and sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(1), * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-51100 Document: 00516274039 Page: 2 Date Filed: 04/08/2022 No. 21-51100 c/w No. 21-51121 along with the revocation of a term of supervised release he was serving for a prior offense. He has not briefed the validity of the revocation of his supervised release or his revocation sentence and has, therefore, abandoned any challenge to them. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010). For the first time on appeal, Ochoa-Fabian contends that the enhancement of his illegal reentry sentence pursuant to § 1326(b) was unconstitutional because the fact of his prior conviction was not charged in his indictment or proved to a jury beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief explaining that he has raised this issue only to preserve it for further review and conceding correctly that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Ochoa-Fabian’s motion is GRANTED, and the district court’s judgments are AFFIRMED. 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.