United States of America v. Andrew Espinoza

Filing

OPINION FILED - THE COURT: Roger L. Wollman, James B. Loken and Duane Benton AUTHORING JUDGE:Duane Benton (PUBLISHED) [4434937] [15-3489]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3489
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Andrew Jose Espinoza
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: May 18, 2016
Filed: August 8, 2016
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Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Andrew Jose Espinoza pled guilty to possession with intent to distribute 50
grams or more of a mixture containing methamphetamine, a mixture containing
cocaine, and a mixture containing marijuana, in violation of 21 U.S.C. § 841 (a)(1)
and (b)(1)(B). He objects he is not a career offender and his 188-month sentence is
unreasonable. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

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Shortly before he pled guilty, Espinoza violated the terms of his pretrial release
by threatening staff at his halfway house. The revised PSR classified Espinoza as a
career offender under U.S.S.G. § 4B1.1, due to a prior felony conviction for
possession with intent to deliver a hazardous drug, and two prior felony convictions
for a crime of violence (a Nebraska conviction for terroristic threats and a Texas
conviction for burglary of a building). Espinoza objected to the career offender
designation.
Before sentencing, the district court1 notified the parties that it was considering
an upward variance regardless of the outcome of the career offender issue because of
Espinoza’s “extensive criminal history and the conduct that caused revocation of
pretrial release.” At sentencing, the district court applied the career offender
enhancement, increasing the guideline range from 130-168 months to 188-235
months. The district court said:
With respect to the career offender—the legal questions regarding the
career offender issue, even if the defendant was technically not a career
offender, I would, nevertheless, sentence him as if he were because of
two things. Under 18 U.S.C. §3553(a), one of the things that I must. . .
consider is to protect the public from future crimes of the offender. The
defendant’s criminal history in this case is, as I have said a moment ago,
breathtaking. Moreover, the presentence report indicates that his pretrial
release was revoked because he made threats to the staff at the halfway
house, so to speak, where he was being treated. That suggests to me a
very high risk—those two things suggest to me a very high risk to
re-offend, similar to the very high risk that we see in career offenders.
So, I will upwardly vary accordingly.
The court sentenced Espinoza to 188 months’ imprisonment. Espinoza argues that
the district court erred in applying the career offender enhancement because the two

1

The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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convictions for terroristic threats and burglary of a building are not crimes of violence
under U.S.S.G. § 4B1.2. He also claims the sentence is unreasonable
It is “unnecessary to address whether [Espinoza] qualifies as a career offender,
because the district court’s alternative decision to vary upward from the advisory
guideline range is sufficient to justify the sentence imposed.” See United States v.
Hentges, 817 F.3d 1067, 1068 (8th Cir. 2016). The discussion at sentencing shows
that “the district court thought the sentence it chose was appropriate irrespective of
the Guidelines range.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1346-47
(2016) (“Judges may find that some cases merit a detailed explanation of the reasons
the selected sentence is appropriate. And that explanation could make it clear that the
judge based the sentence he or she selected on factors independent of the
Guidelines.”).
This court “may not apply a presumption of unreasonableness” when a
sentence is outside the guidelines range. United States v. Moralez, 808 F.3d 362, 368
(8th Cir. 2015). This court “may consider the extent of the deviation, but must give
due deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Id. Espinoza violated his pretrial release by
threatening the staff at his halfway house. The district court found that he had a high
risk of re-offending, and that the need to protect the public outweighed any mitigating
factors. Espinoza’s sentence—20 months above the original guidelines—is based on
the court’s consideration of the statutory goals of sentencing and factors in § 3553(a).
See Hentges, 817 F.3d at 1068-69 (affirming district court’s upward variance based,
in part, on defendant’s “extensive criminal history”, and his “extremely poor”
performance on correctional supervision). The district court’s above-guidelines
sentence is reasonable.

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The judgment is affirmed.
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