United States v. Jorge Ochoa

Appellant Jorge Ochoa pleaded guilty to a one count information charging him with distribution of cocaine in violation of 21 U.S.C. § 841 (a)(1). In the plea agreement, Ochoa admitted to knowingly possessing and delivering to a co-conspirator three kilograms of cocaine. Ochoa filed an objection to the Guideline Presentence Report and Recommendation (hereinafter “PSR”) prepared by the United States Probation Department, which alleged that under the United States Sentencing Guideline § 1B1.3, Ochoa should be held responsible for distributing 39 kilograms of cocaine. Ochoa did not request an evi-dentiary hearing, and the district court sentenced him to 87 months imprisonment. Ochoa now argues that under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), U.S.S.G. § 1B1.3 is facially unconstitutional, or that the district court’s application of U.S.S.G. § 1B1.3 to his case was unconstitutional. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 , and we affirm Ochoa’s sentence.

I.

Between July and November, 2000, Ochoa and eleven others were under federal investigation for cocaine trafficking. Investigators intercepted telephone calls,…