United States v. Wendy Espinoza

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Kermit E. Bye and Raymond W. Gruender (UNPUBLISHED); Granting [4287948-2] motion to withdraw as counsel for appellant filed by Mr. John B. Schisler. [4331886] [15-1826]

United States Court of Appeals
For the Eighth Circuit
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No. 15-1826
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Wendy Espinoza
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: October 30, 2015
Filed: October 30, 2015
[Unpublished]
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Before WOLLMAN, BYE, and GRUENDER, Circuit Judges.
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PER CURIAM.
Wendy Espinoza pleaded guilty to wire fraud, in violation of 18 U.S.C. § 1343,
and mail fraud, in violation of 18 U.S.C. § 1341, admitting she participated in a
scheme that involved extracting payments from illegal immigrants in exchange for
false assurances that she could help them obtain legal status. After a lengthy
sentencing hearing during which several victims testified, along with a special agent

Appellate Case: 15-1826

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Date Filed: 10/30/2015 Entry ID: 4331886

with the Office of the Inspector General of the Social Security Administration, the
district court1 adopted the calculations in the presentence investigation report, varied
upward from the advisory Guidelines imprisonment range of 57-71 months, and
sentenced Espinoza to concurrent terms of 96 months in prison and 3 years of
supervised release on each count. The court also ordered restitution of $541,520.
Espinoza appeals, and her counsel has filed a brief under Anders v. California, 386
U.S. 738 (1967), challenging Espinoza’s prison term.
Following de novo review of the district court’s application of the Guidelines,
and clear error review of its findings of fact, see United States v. Betts, 509 F.3d 441,
445 (8th Cir. 2007), we conclude that a preponderance of the evidence supported the
district court’s Guidelines calculations with regard to the number of victims and the
loss amount, see United States v. Adejumo, 772 F.3d 513, 526 (8th Cir.), cert. denied,
135 S. Ct. 1869 (2015), particularly given that witness credibility is a matter left to the
district court, see United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir. 2000) (per
curiam).
We also find no abuse of discretion in the district court’s decision to impose a
sentence above the advisory Guidelines range after express consideration of the
sentencing factors. See United States v. Straw, 616 F.3d 737, 743 (8th Cir. 2010).
Finally, after conducting independent review under Penson v. Ohio, 488 U.S.
75, 80 (1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant
counsel’s motion to withdraw.
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1

The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Missouri.
-2-

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Date Filed: 10/30/2015 Entry ID: 4331886