United States v. Lorenzo Espinoza , 476 Fed. Appx. 678 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50202
Plaintiff - Appellee., D.C. No. 2:04-cr-00263-SVW-1
v.
MEMORANDUM *
LORENZO ESPINOZA, aµa Seal A,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted January 9, 2012
Pasadena, California
Before: REINHARDT and W. FLETCHER, Circuit Judges, and BREYER,
District Judge.**
Lorenzo Espinoza pleaded guilty to a five-count indictment for a conspiracy to
defraud the Housing and Urban Development (HUD) agency, banµruptcy fraud,
willful failure to pay taxes, and money laundering. After rejecting the leadership
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
enhancement recommended by the Presentence Report and reducing the amount of
loss for which the sentence should account, the district court calculated a Guidelines
range of 12-18 months. It then sentenced Espinoza to one year of imprisonment on the
tax count and five years of imprisonment on each of the others counts, to be run
concurrently. Espinoza appeals his sentence. We vacate the sentence on the basis of
procedural error, without reaching Espinoza's claim of substantive unreasonableness.
The district court erred in its analysis in two ways. First, it improperly relied on
Espinoza's 'extreme greed' to justify an increase in his sentence. See United States
v. Enriquez-Munoz, 906 F.2d 1356, 1361-62 (9th Cir. 1990) ('[P]rofit is a primary
motivating factor in many if not most types of crimes. Certainly as to crimes in which
the desire for profit commonly plays a role, an upward departure based on the
presence of such a motive would be entirely unwarranted.'), abrogated on other
grounds as recognized by United States v. Caperna, 251 F.3d 827 (9th Cir. 2001).
Second, in applying the y 3553(a) factors, the district court did not adequately
tie its analysis of these factors to specific facts, especially given the degree to which
its sentence varied from the Guidelines range. ''[A] checµlist recitation of the section
3553(a) factors is neither necessary nor sufficient for a sentence to be reasonable.''
United States v. Mix, 457 F.3d 906, 912-13 (9th Cir. 2006). Rather, 'the district court
must explain [its sentence] sufficiently to permit meaningful appellate review.' United
2
States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). The requisite degree of
explanation 'will necessarily vary depending upon the complexity of the particular
case, whether the sentence chosen is inside or outside the Guidelines, and the strength
and seriousness of the proffered reasons for imposing a sentence that differs from the
Guidelines range.' Id. Whereas '[a] within-Guidelines sentence ordinarily needs little
explanation,' that is not the case for 'a sentence outside the Guidelines.' Id.; see also
Gall v. United States, 552 U.S. 38, 46 (2007) ('[A] district judge must give serious
consideration to the extent of any departure from the Guidelines and must explain his
conclusion that an unusually lenient or an unusually harsh sentence is appropriate in
a particular case with sufficient justifications.').
Here, the sentence that the district court imposed--more than three times the
top of the Guidelines range and more than seven times that imposed on any other
defendant involved in the same crimes--called for a detailed explanation. Although
the district court made reference to the 'extent and nature of the fraud' that Espinoza
committed, the Guidelines account for the amount of loss caused by a crime of fraud.
U.S. Sentencing Guidelines Manual y 2F1.1 (2000). To the extent that the district
court had in mind features of Espinoza's crimes other than the amount of loss that
they caused, it did not explain its reasoning in a manner adequate 'to permit
meaningful appellate review,' Carty, 520 F.3d at 992.
3
For these reasons, we vacate the sentence for procedural error. We disagree,
however, with Espinoza's other claims of procedural error, and we express no view
as to whether a sixty-month sentence is or is not substantively reasonable for the
crimes of which Espinoza was convicted.
VACATED AND REMANDED.
4
FILED
United States v. Espinoza, No. 10-50202 MAR 15 2012
MOLLY C. DWYER, CLERK
W. FLETCHER, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I would affirm the sentence of the district court.