United States v. Victor Espinoza

479 F. App'x 739
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 26, 2012
Docket11-3105
StatusUnpublished

This text of 479 F. App'x 739 (United States v. Victor Espinoza) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Victor Espinoza, 479 F. App'x 739 (8th Cir. 2012).

Opinion

PER CURIAM.

After Victor Espinoza pleaded guilty to money laundering, see 18 U.S.C. § 1956(h), and conspiring to possess a controlled substance with the intent to distribute it, see *740 21 U.S.C. § 846, the district court 1 sentenced him to concurrent terms of 222 months’ imprisonment. He appeals his prison sentence and the imposition of one of his conditions of supervised release. We affirm.

I.

Mr. Espinoza maintains that the sentencing court violated Fed.R.Crim.P. 32(i)(3)(B) by failing to rule on his objections to thirty-five paragraphs of his pre-sentence investigation report. Under that rule, the court must resolve “any disputed portion of the presentence report or other controverted matter” or “determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” Fed.R.Crim.P. 32(i)(3)(B). Mr. Espinoza denied factual allegations in only two of the thirty-five paragraphs, and the court complied with the rule by stating that it did not need to rule on the disputes because the facts were “unnecessary to sentencing.” See United States v. Miller, 951 F.2d 164, 165 (8th Cir.1991) (per curiam).

With respect to the other thirty-three paragraphs, defense counsel stated at sentencing that Mr. Espinoza was “not denying the truth of those facts.” The court thus had no disputes to resolve under Rule 32(i)(3)(B). See United States v. Razo-Guerra, 534 F.3d 970, 975-76 (8th Cir.2008), ce rt. denied, 555 U.S. 1193, 129 S.Ct. 1365, 173 L.Ed.2d 624 (2009). Mr. Espinoza instead asked the court to delete all thirty-three paragraphs from the PSR on relevancy grounds, contending that they pertained to activities of the drug-trafficking operation that he had “nothing to do with,” except for being a major supplier of the drugs. On appeal, he reiterates his contention that the court should have stricken these paragraphs from the PSR.

We conclude that any error in failing to delete these paragraphs was harmless. At sentencing, the parties agreed with the court’s sentencing-range calculation of 262-327 months. The government moved for a substantial-assistance reduction but noted Mr. Espinoza’s less-than-complete assistance. The court emphasized the large quantities of pure methamphetamine and cocaine that Mr. Espinoza supplied and the potential for death that they created. It emphatically rejected Mr. Espinoza’s assertion that he sold drugs to pay for his mother’s medical care; given the huge profits generated by this quantity of drugs and his mother’s relatively small medical bills, it pronounced Mr. Espinoza “insane” if he thought the court was going to believe his excuse. The court also described his assistance as “at best half-hearted” and the government’s motion for a reduction as a “gift.” After noting that it would generally reduce a sentence by no more than twelve percent for such assistance, it gave Mr. Espinoza a fifteen-percent reduction because of his youth and lack of criminal history. The court’s reasons for imposing its sentence were very specific to Mr. Espinoza, and the court quite evidently gave no weight to the purportedly irrelevant paragraphs. The failure to delete them, if it was error, was therefore harmless and does not entitle Mr. Espinoza to relief. See Fed.R.Crim.P. 52(a).

II.

Mr. Espinoza contends that the district court erred by failing to make findings to support its imposition of a condition prohibiting him from drinking alcohol during his supervised release. He admits that he did not object to the condition at sen *741 tencing, and we therefore review for plain error only. United States v. Ristine, 335 F.3d 692, 694 (8th Cir.2003). To be eligible for plain-error relief, Mr. Espinoza must first establish an error that is plain (obvious under current law) and that affects his substantial rights. United States v. McDowell, 676 F.3d 730, 732 (8th Cir.2012); see United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If these requirements are met, we will grant relief only if the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (citation and internal quotation marks omitted).

Under 18 U.S.C.A. § 3583(d), the sentencing court has discretion to impose special conditions of supervised release that are reasonably related to the nature of the offense, the defendant’s history and characteristics, deterrence of crime, the need to protect the public from the defendant’s future crimes, and the defendant’s medical and other correctional needs, and any condition must involve “no greater deprivation of liberty than is reasonably necessary.” Id.; United States v. Kelly, 625 F.3d 516, 519 (8th Cir.2010); U.S.S.G. § 5D1.3(b). The court must “make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.” United States v. Wiedower, 634 F.3d 490, 493 (8th Cir.2011) (citation and internal quotation marks omitted). Here, the district court failed to make these individualized findings, and we have held that this omission is plain or obvious error, see United States v. Poitra, 648 F.3d 884, 889 (8th Cir.2011).

To be entitled to relief, though, Mr. Espinoza must establish that this error affected his substantial rights. To do so, he must show that it is reasonably likely that the district court would not have imposed the condition if it had recognized its duty to provide individualized reasons for doing so. See United States v. Liner, 435 F.3d 920, 926 (8th Cir.2006). We do not think that Mr. Espinoza has met this burden. He was convicted of a drug offense, he admitted to the probation officer that he had a substance abuse problem and would benefit from treatment, and he had a DUI arrest in his record. Mr.

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Related

United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
United States v. Kelly
625 F.3d 516 (Eighth Circuit, 2010)
United States v. Wiedower
634 F.3d 490 (Eighth Circuit, 2011)
United States v. Poitra
648 F.3d 884 (Eighth Circuit, 2011)
United States v. Audrey Miller
951 F.2d 164 (Eighth Circuit, 1991)
United States v. Forde
664 F.3d 1219 (Eighth Circuit, 2012)
United States v. Mosley
672 F.3d 586 (Eighth Circuit, 2012)
United States v. McDowell
676 F.3d 730 (Eighth Circuit, 2012)
United States v. Scott Ristine
335 F.3d 692 (Eighth Circuit, 2003)
United States v. Howard Eugene Liner
435 F.3d 920 (Eighth Circuit, 2006)
United States v. Razo-Guerra
534 F.3d 970 (Eighth Circuit, 2008)

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Bluebook (online)
479 F. App'x 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-victor-espinoza-ca8-2012.