United States v. Espinoza

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 14, 2022
• Docket: 21-8068
• Status: Unpublished

Opinion

Appellate Case: 21-8068 Document: 010110671014 Date Filed: 04/14/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 14, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-8068 (D.C. No. 1:08-CR-00170-WFD-1) JULIAN ESPINOZA, (D. Wyo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, BRISCOE, and CARSON, Circuit Judges. _________________________________

Julian Espinoza, proceeding pro se,1 appeals the district court’s order

dismissing his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i),

as amended by the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. For

the reasons explained below, we vacate the court’s dismissal for lack of jurisdiction

and remand with instructions to deny the motion.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We construe Espinoza’s pro se briefs liberally, but we do not act as his advocate. United States v. Griffith, 928 F.3d 855, 876 n.12 (10th Cir. 2019). Appellate Case: 21-8068 Document: 010110671014 Date Filed: 04/14/2022 Page: 2

Background

In 2009, a jury convicted Espinoza of (1) possession of child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2); and (2) receipt of child pornography in

violation of 18 U.S.C. § 2252A(a)(2)(A), (b)(1). After Espinoza argued that imposing

consecutive sentences for these two counts would violate double jeopardy because both

counts related to the same child pornography, the government conceded the issue, and the

district court dismissed the possession count. The district court sentenced Espinoza to the

statutory maximum of 240 months in prison for the receipt count, followed by a lifetime

term of supervised release. See § 2252A(b)(1). We affirmed Espinoza’s conviction on

direct appeal. United States v. Espinoza, 403 F. App’x 315 (10th Cir. 2010)

(unpublished).

In 2021, Espinoza filed a counseled motion for compassionate release, arguing

that he had exhausted his administrative remedies and that relief was warranted

because his age and underlying health conditions—including diabetes and high blood

pressure—increased his risk of severe illness from COVID-19. Although Espinoza

disclosed that he had already tested positive for COVID-19 and recovered, he argued

that he could suffer serious health consequences if reinfected. In response, the

government conceded both exhaustion and that Espinoza’s health conditions

constituted extraordinary and compelling circumstances in the context of the COVID-

19 pandemic. But it asserted that the court should nevertheless deny relief because

the 18 U.S.C. § 3553(a) sentencing factors weighed against a sentence reduction. The

district court, after finding adequate exhaustion, declined to determine whether

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Espinoza could show extraordinary and compelling circumstances because it agreed

with the government that relief was not warranted under the § 3553(a) factors. As a

result, the district court reasoned that it lacked authority under § 3582(c)(1)(A) to

grant relief and dismissed Espinoza’s motion for lack of subject-matter jurisdiction.

It also denied Espinoza’s motion for reconsideration.

Espinoza appeals.2 Although Espinoza suggests in passing that we should

exercise de novo review, it is well-settled that we review a district court’s

compassionate-release ruling for abuse of discretion. See United States v.

Hemmelgarn, 15 F.4th 1027, 1031 (10th Cir. 2021).

Analysis

Espinoza argues that the district court erred in denying him a compassionate-

release sentence reduction. Under § 3582(c)(1)(A), a defendant may file a motion for a

sentence reduction after exhausting administrative remedies, and the district court may

grant a reduction if three requirements are met: (1) extraordinary and compelling

circumstances warrant the reduction; (2) the reduction is consistent with the Sentencing

Commission’s applicable policy statements; and (3) consideration of the § 3553(a)

2 Espinoza filed notices of appeal as to both the district court’s denial of his compassionate-release motion and its denial of his motion for reconsideration. However, as noted by the government, Espinoza waived appellate review of the district court’s reconsideration order because he did not address this order in his opening brief. See United States v. Alvarez, 137 F.3d 1249, 1251 n.3 (10th Cir. 1998) (finding pro se criminal defendant waived review of issues not addressed in opening brief). Indeed, even after the government identified Espinoza’s waiver in its response brief, Espinoza did not address the reconsideration order in his reply brief. Thus, we limit our review to the district court’s disposition of Espinoza’s compassionate- release motion.

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factors warrants a reduction. § 3582(c)(1)(A)(i); see also United States v. McGee, 992

F.3d 1035, 1042–43 (10th Cir. 2021). The district court can consider these three

requirements in any order and can deny relief if any requirement is lacking. See United

States v. Hald, 8 F.4th 932, 942–43, 947 (10th Cir. 2021), petition for cert. filed (U.S.

Dec. 15, 2021) (No. 21-6594). Moreover, we have held that there are currently no

applicable policy statements for defendant-filed compassionate-release motions,

rendering the second factor irrelevant here. See McGee, 992 F.3d at 1050.

On appeal, Espinoza argues that the district court abused its discretion in

concluding that the § 3553(a) factors weighed against reducing his sentence. Section

3553(a) directs courts to consider certain factors when making sentencing decisions.

These factors include (1) the nature and circumstances of the crime and the

defendant’s history and characteristics; (2) the need for the sentence to reflect the

seriousness of the crime, promote respect for the law, and provide just punishment;

(3) the need for the sentence to deter criminal behavior, protect the public from the

defendant, and provide the defendant with effective medical care; (4) the need to

avoid unwarranted sentencing disparities among those with similar records who have

been convicted of similar conduct. See § 3553(a)(1)–(2), (6). It is within the district

court’s discretion to weigh these factors, and we will not reverse unless the district

court “made a clear error of judgment or exceeded the bounds of permissible choice

in the circumstances.” Hald, 8 F.4th at 949–50 (quoting United States v. Chavez-

Meza, 854 F.3d 655, 659 (10th Cir. 2017)).

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Weighing these factors, the district court first considered the “especially

atrocious” nature and circumstances of Espinoza’s offense. R. vol. 1, 217; see also

§ 3553(a)(1). Specifically, the district court noted that Espinoza possessed thousands

of images of child pornography, including images that were sadistic, depicted

violence, and involved children under the age of 12. The district court acknowledged

Espinoza’s contention that his sentence was longer than sentences imposed on other

child-pornography offenders, but it concluded that this was for “good reason,” noting

multiple sentencing enhancements triggered by Espinoza’s own behavior. R. vol. 1,

217; see also § 3553(a)(6) (directing sentencing court to avoid “unwarranted

sentence disparities” (emphasis added)). In particular, the district court noted a six-

level enhancement triggered by the nature of the pornography, a five-level

enhancement triggered by the sentencing court’s finding that Espinoza had engaged

in a pattern of hands-on sexual abuse of minor children, and a two-level enhancement

for obstructing justice by committing perjury on the stand at trial. And although the

district court commended Espinoza for his rehabilitation efforts in prison, it found

that the sentence reduction Espinoza sought would not adequately deter future

criminal conduct. Finally, the district court rejected Espinoza’s argument that he

could not reoffend because of his poor vision and also found that nothing in the

record indicated Espinoza was not receiving proper medical care.

On appeal, Espinoza challenges the district court’s analysis by arguing that he

deserves early release for several reasons. First, Espinoza asserts he is statistically

unlikely to reoffend or pose a danger to the community, citing his age, health

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conditions, remorse for his prior conduct, clean prison record, and rehabilitation

efforts. Although Espinoza may be correct, these factors do not cast significant doubt

on the district court’s decision, especially given that the district court expressly

recognized Espinoza’s rehabilitation efforts but found that such efforts did not

outweigh other considerations.

Next, Espinoza emphasizes that he had no prior criminal history and reasserts

that his sentence is “far beyond the norm for his crime.” Aplt. Br. 10. But Espinoza

fails to acknowledge the district court’s explanation for his lengthy sentence—the

enhancements triggered by Espinoza’s possession of violent and sadistic child

pornography, history of uncharged child sexual abuse, and obstruction of justice.

Thus, we reject this argument for the same reasons articulated by the district court.

Finally, Espinoza asserts that “it is difficult to understand” which of the

§ 3553(a) factors the district court believed he did not meet. Aplt. Br. 11. Contrary to

this assertion, the district court carefully explained that multiple factors weighed

against release, including the nature and circumstances of the offense, Espinoza’s

history and characteristics, the need to deter future criminal conduct, and the need for

the sentence to reflect the seriousness of the offense. Moreover, we have explained

that a district court’s compassionate-release analysis need not be detailed; rather, a

district court need only show that it considered the defendant’s arguments and had a

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reasoned basis for denying relief. See Hald, 8 F.4th at 948. This requirement was met

here.3

In sum, Espinoza has not identified any aspect of the district court’s decision

that would constitute an abuse of discretion. After carefully considering Espinoza’s

motion, the parties’ briefing, and the relevant portions of the record, we are not left

with a definite and firm conviction that the district court “made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.” Id. at

949–50 (quoting Chavez-Meza, 854 F.3d at 659).

Although we find no abuse of discretion in the district court’s § 3553(a)

analysis, we note that its ultimate disposition of Espinoza’s motion was a dismissal

for lack of jurisdiction. In light of recent precedent clarifying that § 3582(c)(1)(A)’s

requirements are not jurisdictional, we remand for the district court to deny, rather

than dismiss, the motion. See id. at 942 n.7 (declining to read jurisdictional element

into § 3582(c)(1)(A)’s extraordinary-and-compelling requirement); United States v.

Wills, No. 21-3060, 2021 WL 4205160, *2–3 (10th Cir. Sept. 16, 2021)

(unpublished) (finding no abuse of discretion in district court’s determination that

3553(a) factors weighed against compassionate release but vacating district court’s

order dismissing motion for lack of subject-matter jurisdiction in light of Hald and

3 Espinoza also argues that he could receive timely medical care and a COVID-19 booster if released. Although this may be true, we are not persuaded that this factor undermines the district court’s analysis.

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remanding with instructions to deny motion).4

As a final matter, we deny Espinoza’s motion to supplement his reply brief

with an exhibit regarding prison conditions because Federal Rule of Appellate

Procedure 10(e) generally does not permit parties to supplement the record with new

materials on appeal and Espinoza’s motion does not present a “rare exception” to

such rule. See United States v. Kennedy, 225 F.3d 1187, 1191–92 (10th Cir. 2000)

(explaining that although this court may exercise its “inherent equitable power to

supplement the record on appeal,” exercise of such discretion is “rare exception” to

Rule 10(e)).

Conclusion

We vacate the district court’s dismissal for lack of jurisdiction, remand with

instructions to deny the motion, and deny Espinoza’s motion to supplement.

Entered for the Court

Nancy L. Moritz Circuit Judge

4 We cite this unpublished case for its persuasive value. See 10th Cir. R. 32.1(A).