United States v. Jorge Espinoza ( 2022 )

NOT FOR PUBLICATION FILED
MAR 16 2022
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10159
Plaintiff-Appellee, D.C. Nos.
4:20-cr-02715-RM-DTF-1
v. 4:20-cr-02715-RM-DTF
JORGE ARMANDO LOPEZ ESPINOZA,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Rosemary Márquez, District Judge, Presiding
Submitted March 9, 2022**
Phoenix, Arizona
Before: HAWKINS, PAEZ, and WATFORD, Circuit Judges.
Jorge Armando Lopez Espinoza pleaded guilty to smuggling goods from the
United States in violation of 18 U.S.C. § 554(a). He appeals from the district
court’s judgment accepting that plea and imposing a 46-month sentence. We
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 2 of 3
1. The district court did not plainly err by accepting Espinoza’s guilty plea.
See United States v. Bain, 925 F.3d 1172, 1176 (9th Cir. 2019). Section 554(a) is
applicable in relevant part to “whoever . . . in any manner facilitates the
transportation, concealment, or sale of [any merchandise contrary to law], prior to
exportation, knowing the same to be intended for exportation contrary to any law
or regulation of the United States.” Espinoza and his attorney both acknowledged
that he communicated with individuals in Mexico and the United States to
facilitate the transportation of ammunition intended for export. The magistrate
judge then clarified that Espinoza had been “trying to help . . . get this ammunition
to people that [Espinoza was] speaking to in Mexico,” and Espinoza
unambiguously confirmed that was correct. Espinoza also acknowledged that he
was attempting to transport the ammunition in secret and without a license. Thus,
even if Espinoza never took possession of or transported the actual ammunition, he
sufficiently established a factual basis for the plea. See United States v. Rivero,
889 F.3d 618, 621–22 (9th Cir. 2018); United States v. Chi Tong Kuok, 671 F.3d
931, 943–45 (9th Cir. 2012) (holding that, under § 554(a), a defendant may be
found guilty even when he neither takes possession of the item intended for export
nor exports the item himself).
2. The district court did not err in imposing Espinoza’s sentence. The
advisory note to United States Sentencing Guidelines § 2M5.2 states that a
Page 3 of 3
downward departure from the base offense level may be warranted in the unusual
case in which the defendant’s conduct posed no risk to United States national
security or foreign policy interests. Here, if the government had not intervened,
Espinoza would have exported 8,000 rounds of ammunition to Mexico. Espinoza
argues that the fake ammunition he ended up transporting due to the government’s
intervention could not have caused any harm to protected interests. However, the
district court did not abuse its discretion by declining to apply the advisory note to
conduct that, but for the government’s intervention, could have been harmful to
United States foreign policy interests.
As for Espinoza’s argument that the district court should have applied
Sentencing Guidelines § 2X1.1, that guideline applies only to attempt, solicitation,
and conspiracy. As noted, Espinoza pleaded guilty to the actual offense of
facilitating the transportation of ammunition under § 554(a), and thus § 2X1.1 does
not apply.
AFFIRMED.