USA v. Espinoza ( 2021 )

Case: 20-40853 Document: 00516044798 Page: 1 Date Filed: 10/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 6, 2021
No. 20-40853
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Eli Espinoza,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:20-CR-876-1
Before Owen, Chief Judge, and Clement and Duncan, Circuit Judges.
Per Curiam:*
A federal grand jury indicted Eli Espinoza for smuggling goods from
the United States in violation of 18 U.S.C. §§ 554(a) and 2. Pursuant to
United States Sentencing Guidelines § 2M5.2(a)(1), the district court
applied a base offense level of 26 and, after making certain adjustments,
sentenced him to 63 months’ imprisonment. It further imposed a three-year
*
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opinion should not be published and is not precedent except under the limited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: 20-40853 Document: 00516044798 Page: 2 Date Filed: 10/06/2021
No. 20-40853
term of supervised release and a $100 special assessment. Espinoza
challenges his sentence on the ground that the district court erred in
declining to apply the lower base offense level of 14 under § 2M5.2(a)(2)(A).
Because we conclude that the district court did not reversibly err, we
AFFIRM.
I. FACTS AND PROCEEDINGS
On April 30, 2020, Espinoza applied for outbound inspection into
Mexico at the Hidalgo, Texas Port of Entry. Immigration officials questioned
him, and after he denied having contraband, they referred him for secondary
inspection of his vehicle. Espinoza fled, and immigration officials pursued.
Shortly thereafter, Espinoza was arrested, and a search of his vehicle revealed
five packages containing firearm components, which included the following:
• Front trunnion
• AK Bolt Body
• Gas Piston
• Upper Hand Guard and Gas Tube
• Rear Sight Block
• Recoil Spring with Recoil Spring Rear Guide
• Dust Cover
• Trigger for Semi-Automatic Rifle
• Bolt Carrier Assembly
• Bolt Catch
On May 28, 2020, a federal grand jury charged Espinoza, by single-
count indictment, with:
[F]raudulently and knowingly export[ing] and send[ing] from
the United States, or attempt[ing] to export and send from the
United States to the United Mexican States, any merchandise,
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article, or object, to wit: firearms components to include, front
trunnion, AK bolt body, upper hand guard and ga[s] tube, rear
sight block, recoil spring with recoil spring rear guide, dust
cover, trigger for semi-automatic rifle, bolt carrier assembly,
and bolt catch, without a license or written approval from the
United States Department of Commerce, as required by Title
50, United States Code, Sections 4819 and Title 15, Code of
Federal Regulations, Sections 730-744[,] [i]n violation of Title
18, United States Code, Sections 554(a) and 2.
The indictment also included a forfeiture notice, specifying that upon
conviction, Espinoza would forfeit the firearm components found in his
vehicle.
Espinoza pleaded guilty on September 17, 2020. That same day, the
district court ordered the probation officer to prepare a presentence report
(“PSR”) to assist it with Espinoza’s sentencing. In the PSR, the probation
officer determined that § 2M5.2(a) supplies the base offense level for
violations of 18 U.S.C. §§ 554(a) and 2 and recommended a base offense level
of 26. With criminal history category II, and after an upward adjustment for
reckless endangerment and a downward adjustment for acceptance of
responsibility, this corresponded to a total offense level of 26 and a
recommended Guidelines range of 70–87 months.
Espinoza filed written objections to the PSR. He argued that, under
§ 2M5.2(a)(2)(A), the lower base offense level of 14 should apply because his
offense involved only non-fully automatic small arms, and the number of
weapons did not exceed two. The crux of his argument was that the
component parts the Government found in his vehicle were sufficient, at
most, for one fully assembled, non-fully automatic firearm. In response, the
probation officer filed an addendum to the PSR, in which he reiterated that
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the base offense level of 26 was proper due to the case agent’s statement that
the firearms components found in Espinoza’s vehicle were capable of
comprising around four to five fully assembled firearms.
At his sentencing hearing, Espinoza renewed his objections. The
district court overruled his objections and adopted the PSR. Based on a total
offense level of 25 and criminal history category II, the district court
sentenced Espinoza to 63 months’ imprisonment. It further imposed a three-
year term of supervised release and a $100 special assessment. Espinoza
timely appealed.
II. STANDARD OF REVIEW
“Where a defendant preserves error by objecting at sentencing, we
review the sentencing court’s factual findings for clear error and its
interpretation or application of the Sentencing Guidelines de novo.” United
States v. Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015); see also United
States v. Hernandez, 876 F.3d 161, 164 (5th Cir. 2017) (per curiam). “There
is no clear error where the district court’s finding is plausible in light of the
record as a whole.” United States v. Rico, 864 F.3d 381, 383 (5th Cir. 2017).
III. DISCUSSION
Espinoza argues that the district court reversibly erred by applying a
base offense level of 26 because the facts in the PSR show that the firearm
components found in his vehicle are insufficient to comprise more than one
fully assembled firearm. For the following reasons, we find no reversible
error.
A.
“When making factual findings for sentencing purposes, a district
court ‘may consider any information which bears sufficient indicia of
reliability to support its probable accuracy.’” United States v. Zuniga, 720
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F.3d 587, 590–91 (5th Cir. 2013) (per curiam) (quoting United States v.
Harris, 702 F.3d 226, 230 (5th Cir. 2012)). “Generally, a PSR ‘bears
sufficient indicia of reliability to be considered as evidence by the sentencing
judge in making factual determinations.’” Harris, 702 F.3d at 230 (quoting
United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010)).
The district court adopted the PSR. In so doing, it implicitly made the
factual finding that the information contained in the PSR was sufficiently
reliable. United States v. Peterson, 977 F.3d 381, 396 (5th Cir. 2020) (“A
district court’s reliance on a PSR is based on a finding of fact that the PSR’s
information contains indicia of reliability.”). And we will disturb that factual
finding only if “a review of the record results in a ‘definite and firm
conviction that a mistake has been committed.’” Zuniga, 720 F.3d at 590
(quoting United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (per
curiam)).
After carefully reviewing the record, we cannot say with a definite and
firm conviction that the district court made a mistake. The information
contained in the PSR was the result of several months of investigation into
Espinoza’s illegal activities. During that time, Homeland Security
Investigations (“HSI”) agents surveilled Espinoza and obtained confidential
information about his smuggling operation, including the dates he typically
met with his suppliers, his pick-up locations, the dates he made trips into
Mexico, and even the compartment of his vehicle in which he stored
contraband. The HSI agents’ investigation of Espinoza was thorough and
based on reliable information, and Espinoza does not dispute that.
What Espinoza does dispute is the reliability of a single statement
from the PSR: the case agent’s statement that the firearm components found
in his vehicle were sufficient to comprise four to five fully assembled
firearms. But at this stage of the analysis, in which we evaluate the reliability
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and factual basis of the information contained in the PSR, we have no reason
to doubt the veracity of a statement made by a trained HSI agent familiar with
the case—particularly one set forth in a PSR that is otherwise reliable in every
respect.
To be sure, “[b]ald, conclusionary statements” in a PSR do not bear
sufficient indicia of reliability, and it is error for a district court to consider
them. Harris, 702 F.3d at 230 n.2 (quoting United States v. Elwood, 999 F.2d
814, 817–18 (5th Cir. 1993)). And “mere inclusion in the PSR does not
convert facts lacking an adequate evidentiary basis . . . into facts a district
court may rely upon at sentencing.” Id. But these are not those kinds of
facts. Viewing the record as a whole, we are satisfied that the information
contained in the PSR—which was based on a review of months of
investigative material and at least one interview with the case agent—is
reliable and supported by adequate evidence.
B.
Because the PSR bore sufficient indicia of reliability, the burden shifts
to Espinoza to offer rebuttal evidence demonstrating that the PSR contained
“materially untrue, inaccurate[,] or unreliable” information. Id. at 230(quoting United States v. Huerta, 182 F.3d 361, 364–65 (5th Cir. 1999)). But
he did not do so. In his written objections to the PSR, Espinoza stated:
In the instant case, there were a number of component parts.
However, it would appear that they would have been sufficient,
at most, for one fully-assembled non-fully automatic firearm.
For these reasons, Mr. Espinoza urges that the weapon at issue
(fully assembled) would fall under U.S.S.G. § 2M5.2(a)(2)(A),
and as such, a base offense level of 14 is appropriate. . . . In the
event the Court overrules Mr. Espinoza’s objection to the base
offense level, he would urge the Court to consider that the
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item(s) in question did not amount to a weapon that was fully
operational. Two fully-loaded fully-operational non-fully
automatic rifles would trigger a base offense level of 14.
And later, at his sentencing hearing, Espinoza renewed his objection
to the base offense level. His counsel argued as follows:
Now, I looked at the items that we’re talking about, these
component parts; and although I’m no gun expert or anything
like that, you know, I know the agent may have said that that
was enough to put together three or four firearms. I know it’s
always dangerous when lawyers try to do math. I don’t think
the numbers add up.
But this is hardly rebuttal evidence. Rebuttal evidence must consist of
more than a defendant’s objection and argumentation; “[m]ere objections
to . . . supported facts are generally insufficient.” Id. (citing United States v.
Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010)). Espinoza did not offer any
evidence to support his written objections or his objections at the sentencing
hearing. And his failure to do so is especially puzzling given the fact that
evidence of the precise number of firearm components he was smuggling, and
testimony regarding how many firearms those components could conceivably
comprise, strikes the court as the very kind of evidence he should be able to
present. Indeed, it was in his best interest to do so. But he did not.
Due to the lack of testimony or evidence rebutting the case agent’s
statement, the district court was entitled to adopt the PSR “without further
inquiry or explanation.” Rodriguez, 602 F.3d at 363.
C.
Espinoza asserts on appeal that, because the firearm components
listed in the PSR appear in the singular, rather than the plural, there must
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have been only one of each component found in his vehicle. This contention
fails for two reasons. First, it is pure argumentation, which is not competent
rebuttal evidence. Harris, 702 F.3d at 230 n.2. As previously discussed,
Espinoza cannot rely on argumentation alone to carry his burden of providing
evidence to rebut the information set forth in the PSR. Id.
Second, as the Government correctly observed, this contention is
belied by the record. The HSI agent who arrested Espinoza testified in his
affidavit that the search of Espinoza’s vehicle led to the discovery of
“multiple firearms components for a semi-automatic rifle, including but not
limited to: bolt carrier assembles, bolt catches, rear pistol grips, and triggers.”
Likewise, the notice of forfeiture and the plea agreement both employed
similar “includes, but is not limited to” language.
Espinoza counters that the PSR did not use this prefatory language
when it listed the firearm components found in his vehicle. And, he
continues, because the district court adopted the facts in the PSR and not
from elsewhere in the record, the way the firearm components are listed in
the PSR is determinative. But this argument is unpersuasive. The district
court calculated Espinoza’s sentence based on a review of the whole record,
not just the PSR. The PSR is merely a tool to aid the district court in
determining the facts relevant to sentencing; it is not bound by the PSR and
the PSR alone. This argument is not a sufficient basis to find clear error.
D.
Espinoza also relies on a diagram from an online gun website listing
the various components of an AK-47 rifle. The diagram purports to show
that a fully assembled AK-47 rifle has 63 components, only 10 of which were
allegedly found in his vehicle and listed in the indictment and the PSR.
Espinoza offered this illustration to show that the firearm components found
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in his vehicle could not comprise a fully assembled firearm, let alone more
than one.
The problem for Espinoza is that he did not present this diagram, or
anything resembling it, to the district court. We will not consider factual
evidence on appeal that Espinoza did not present to the district court, despite
his ability to do so. See, e.g., Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26
(5th Cir. 1999) (“An appellate court may not consider new evidence
furnished for the first time on appeal and may not consider facts which were
not before the district court at the time of the challenged ruling.” (citing
Great Plains Equip., Inc. v. Koch Gathering Sys., Inc., 45 F.3d 962 (5th Cir.
1995))). As previously discussed, Espinoza had multiple opportunities, and
the incentive, to present the district court with rebuttal evidence showing
that the information contained in the PSR was “materially untrue,
inaccurate[,] or unreliable.” Harris, 702 F.3d at 230. But he did not. And
we will not now consider evidence that the district court did not have the
benefit of considering when calculating Espinoza’s sentence. Whether and
to what extent the diagram and the case agent’s statement are in conflict is
not for us to decide. Our review is limited to whether the district court, based
on the information in the record, clearly erred in adopting the PSR. We
conclude that it did not.
IV. CONCLUSION
The district court did not reversibly err by adopting the PSR and
applying a base offense level of 26 under § 2M5.2(a)(1) rather than a base
offense level of 14 under § 2M5.2(a)(2)(A).
The judgment is AFFIRMED.
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