United States v. Espinoza, 20-40853

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM.
PartiesUnited States of America, Plaintiff-Appellee, v. Eli Espinoza, Defendant-Appellant.
Decision Date06 October 2021
Docket Number20-40853

United States of America, Plaintiff-Appellee,
v.

Eli Espinoza, Defendant-Appellant.

No. 20-40853

United States Court of Appeals, Fifth Circuit

October 6, 2021


Appeal from the United States District Court for the Southern District of Texas USDC No. 7:20-CR-876-1

Before Owen, Chief Judge, and Clement and Duncan, Circuit Judges.

PER CURIAM.[*]

A federal grand jury indicted Eli Espinoza for smuggling goods from the United States in violation of 18 U.S.C. §§ 554(a) and 2. Pursuant to United States Sentencing Guidelines § 2M5.2(a)(1), the district court applied a base offense level of 26 and, after making certain adjustments, sentenced him to 63 months' imprisonment. It further imposed a three-year term of supervised release and a $100 special assessment. Espinoza challenges his sentence on the ground that the district court erred in declining to apply the lower base offense level of 14 under § 2M5.2(a)(2)(A). Because we conclude that the district court did not reversibly err, we AFFIRM.

I. Facts and Proceedings

On April 30, 2020, Espinoza applied for outbound inspection into Mexico at the Hidalgo, Texas Port of Entry. Immigration officials questioned him, and after he denied having contraband, they referred him for secondary inspection of his vehicle. Espinoza fled, and immigration officials pursued. Shortly thereafter, Espinoza was arrested, and a search of his vehicle revealed five packages containing firearm components, which included the following:

• Front trunnion
• AK Bolt Body
• Gas Piston
• Upper Hand Guard and Gas Tube
• Rear Sight Block
• Recoil Spring with Recoil Spring Rear Guide
• Dust Cover
• Trigger for Semi-Automatic Rifle
• Bolt Carrier Assembly
• Bolt Catch

On May 28, 2020, a federal grand jury charged Espinoza, by single-count indictment, with:

[F]raudulently and knowingly export[ing] and send[ing] from the United States, or attempt[ing] to export and send from the United States to the United Mexican States, any merchandise, article, or object, to wit: firearms components to include, front trunnion, AK bolt body, upper hand guard and ga[s] tube, rear sight block, recoil spring with recoil spring rear guide, dust cover, trigger for semi-automatic rifle, bolt carrier assembly, and bolt catch, without a license or written approval from the United States Department of Commerce, as required by Title 50, United States Code Sections 4819 and Title 15, Code of Federal Regulations Sections 730-744[, ] [i]n violation of Title 18, United States Code, Sections 554(a) and 2

The indictment also included a forfeiture notice, specifying that upon conviction, Espinoza would forfeit the firearm components found in his vehicle.

Espinoza pleaded guilty on September 17, 2020. That same day, the district court ordered the probation officer to prepare a presentence report ("PSR") to assist it with Espinoza's sentencing. In the PSR, the probation officer determined that § 2M5.2(a) supplies the base offense level for violations of 18 U.S.C. §§ 554(a) and 2 and recommended a base offense level of 26. With criminal history category II, and after an upward adjustment for reckless endangerment and a downward adjustment for acceptance of responsibility, this corresponded to a total offense level of 26 and a recommended Guidelines range of 70-87 months.

Espinoza filed written objections to the PSR. He argued that, under § 2M5.2(a)(2)(A), the lower base offense level of 14 should apply because his offense involved only non-fully automatic small arms, and the number of weapons did not exceed two. The crux of his argument was that the component parts the Government found in his vehicle were sufficient, at most, for one fully assembled, non-fully automatic firearm. In response, the probation officer filed an addendum to the PSR, in which he reiterated that the base offense level of 26 was proper due to the case agent's statement that the firearms components found in Espinoza's vehicle were capable of comprising around four to five fully assembled firearms.

At his sentencing hearing, Espinoza renewed his objections. The district court overruled his objections and adopted the PSR. Based on a total offense level of 25 and criminal history category II, the district court sentenced Espinoza to 63 months' imprisonment. It further imposed a three-year term of supervised release and a $100 special assessment. Espinoza timely appealed.

II. Standard of Review

"Where a defendant preserves error by objecting at sentencing, we review the sentencing court's factual findings for clear error and its interpretation or application of the Sentencing Guidelines de novo." United States v. Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015); see also United States v. Hernandez, 876 F.3d 161, 164 (5th Cir. 2017) (per curiam). "There is no clear error where the district court's finding is plausible in light of the record as a whole." United States v. Rico, 864 F.3d 381, 383 (5th Cir. 2017).

III. Discussion

Espinoza argues that the district court reversibly erred by applying a base offense level of 26 because the facts in the PSR show that the firearm components found in his vehicle are insufficient to comprise more than one fully assembled firearm. For the following reasons, we find no reversible error.

A.

"When making factual findings for sentencing purposes, a district court 'may consider any information which bears sufficient indicia of reliability to support its probable accuracy.'" United States v. Zuniga, 720 F.3d 587, 590-91 (5th Cir. 2013) (per curiam) (quoting United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012)). "Generally, a PSR 'bears sufficient...

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