Ninth Circuit Upholds Laughing Felon Sentence

     (CN) – A San Francisco judge who suddenly doubled a felon’s prison sentence after the convicted drug dealer laughed upon hearing his original prison term, did not violate federal law, the Ninth Circuit ruled.
     Ramon Ochoa was indicted for being a felon in possession of firearms and ammunition and for conspiracy to distribute marijuana, and pleaded guilty to the first charge, receiving a sentence of five years and 10 months in prison and three years supervised release.
     When Ochoa was directed but failed to participate in a residential reentry center program while subject to supervised release, his probation officer ordered a 180-day stay at the center “due to what [Ochoa] described as an unstable living situation at his parent’s home.”
     But Ochoa was “argumentative and disrespectful” to the reentry center staff, failed to follow their orders, and, when his probation officer confronted him about it, Ochoa said he was going to “walk away” from the program, without permission, according to the officer.
     Seeking revocation, the probation officer said that Ochoa had violated additional reentry center policies, including testing positive for synthetic cannabis use and possessing a small knife.
     Though the officer recommended that the San Francisco court sentence Ochoa to 12 months and a day in prison, the judge called this “way too low,” considering the felon’s attitude.
     Though Ochoa apologized, U.S. District Judge Lawrence O’Neill told him, “no matter what I do here, you are going to be back in the system because you have an attitude that absolutely tells everybody on the face of the planet that you know more than they do.”
     Adding, “This is a way not to see your children,” O’Neill imposed the sentence.
     After the judge explained the right to appeal, Ochoa said, laughing, “Anything else?” claiming he was “just surprised.”
     While Ochoa’s counsel tried to clarify whether his supervision was terminated, the judge said Ochoa “just talked [himself] into more time” and “won’t learn” without the maximum – two years.
     Ochoa’s counsel did not object, but he later timely appealed, arguing under Federal Rule of Criminal Procedure 35(a), the court lacked jurisdiction to increase an already imposed sentence.
     But a divided panel of the Ninth Circuit affirmed the lower court’s ruling Thursday.
     “The rule Ochoa advocates would strip district courts of flexibility to respond to evolving circumstances during sentencing hearings,” U.S. Circuit Judge Johnnie Rawlinson wrote for the panel majority.
     “Here, for example, Ochoa’s laughter signaled to the district court that Ochoa’s lack of interest in cooperating with those tasked with his rehabilitation was as severe as the court originally contemplated when remarking that the recommended sentence of 12 months and a day ‘seem[ed] . . . way too low,'” Rawlinson continued. “If the district court’s initial 12-month-and-a-day sentence were final under Rule 35, the district court would have been unable to adjust the sentence to account for this unexpected development. Unanticipated events may also work in the defendant’s favor-a character witness might arrive at the hearing late, or a new piece of mitigating evidence might be discovered. Ochoa’s proposed rule would preclude a district court from adjusting the sentence downward in light of new information favorable to the defendant.”
     In Dissent, Chief U.S. Circuit Judge Gloria Navarro held that the lower court failed to state some “arithmetical, technical, or other clear error” in the original sentence, as required by Rule 35.
     “The majority’s ruling upholds the draconian decision of the sentencing court to suddenly double the term of incarceration initially pronounced and impose the statutory maximum sentence based solely on a perception that the defendant was laughing at the court,” Navarro wrote. “Affirming this injudicious decree of the sentencing court defies the unambiguous language of Rule 35 and the express limitation of 18 U.S. Code Sec. 3582(c).”
      Lauren Horwood, spokeswoman for the U.S. Attorney’s Office, said the government is “gratified” by the ruling.
     “Supervised release is intended to help convicted felons manage the transition from prison to society,” Horwood wrote. “Those who reject that assistance, who disregard the rules imposed as part of their supervised release, and who are abusive and disrespectful towards probation officers and the court, should not be surprised when they are returned to prison to serve the maximum time behind bars.”
     Horwood said Ochoa’s “long history of noncompliance and abusive behavior,” topped with his “disrespectful conduct in court[,] brought home to the judge the fact that Ochoa was not serious about participating in the rehabilitative supervised release process.”
     The defendant did not immediately respond to a request for comment from Courthouse News.

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