United States v. Johnny Ochoa, Jr., 692 F. App'x 213

Johnny Ochoa, Jr. was convicted of conspiracy to possess with intent to distribute ≥5 kg of cocaine and unlawful use of a communication facility; originally sentenced to 235 months.
On direct appeal, this court found the district court elected not to apply the statutory 20‑year mandatory minimum under 21 U.S.C. § 841(b)(1) and affirmed the within‑Guidelines 235‑month sentence. United States v. Ochoa, 667 F.3d 643.
Ochoa moved under 18 U.S.C. § 3582(c)(2) seeking a sentence reduction based on Amendment 782 to the Sentencing Guidelines.
The district court initially denied relief, concluding Ochoa’s amended Guidelines range still equaled the 240‑month statutory minimum.
After a limited remand, the district court found Ochoa eligible for a two‑level reduction, calculated a new Guidelines range of 151–188 months, and resentenced Ochoa to 188 months.
Ochoa challenged the calculation (arguing a prior‑conviction enhancement should have been subtracted first), but the Fifth Circuit declined to consider that argument raised for the first time in a reply brief and affirmed the 188‑month sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ochoa was eligible for a § 3582(c)(2) reduction under Amendment 782	Amendment 782 should reduce Ochoa’s offense level and permit a lower sentence	Government maintained remand and recalculation were appropriate; district court retains discretion	Court affirmed eligibility and reduction to 188 months; no abuse of discretion
Whether the district court was obliged to grant a sentence at bottom of recalculated range	Ochoa requested bottom‑of‑range sentence	Government: district court may decline any reduction or choose within range	Court held district court not obligated to impose bottom sentence; discretion preserved
Whether an enhancement for prior felony drug conviction should have been subtracted first when recalculating under Amendment 782	Ochoa argued recalculation should first subtract a two‑level enhancement from prior conviction	Government contested procedural posture and calculation	Court refused to consider new argument raised in reply and noted no such enhancement was imposed originally
Whether district court abused its discretion in resentencing to 188 months	Ochoa argued abuse based on calculation and sequencing	Government argued remand and resentencing were proper and within discretion	Court found no abuse of discretion and affirmed judgment

United States v. Ochoa, 667 F.3d 643 (5th Cir. 2012) (on direct appeal addressing mandatory minimum and original sentence)
United States v. Henderson, 636 F.3d 713 (5th Cir. 2011) (standard of review for § 3582(c)(2) is abuse of discretion)
United States v. Evans, 587 F.3d 667 (5th Cir. 2009) (district court not required to grant a within‑range reduction under § 3582(c)(2))
United States v. Daniel, 957 F.2d 162 (5th Cir. 1992) (arguments raised first in a reply brief may be forfeited)