890 F.3d 743
8th Cir.2018Background
- Defendant Francisco Hernandez-Espinoza, a Mexican national who entered the U.S. unlawfully, pleaded guilty to misuse of a Social Security number (42 U.S.C. § 408(a)(7)(B)) and aggravated identity theft (18 U.S.C. § 1028A(a)(1)).
- District court sentenced him to 1 year for SSN misuse (6 months above Guidelines range) plus the statutory 2-year consecutive term for aggravated identity theft, 3 years supervised release, and a $5,000 fine.
- PSR initially listed a prior charge for third-degree criminal sexual conduct (sex with a 15-year-old) under "Adult Criminal Conviction(s)"; defendant had received a deferred prosecution (not a guilty plea or deferred judgment), and the probation officer later conceded no criminal-history point should be assessed.
- At sentencing the district court stated concern about the underlying sexual conduct (unchallenged portions of the PSR showed repeated sexual activity when defendant was 19), and varied upward based on that conduct.
- Defendant challenged: (1) the district court’s alleged belief it had been a deferred judgment and reliance on that belief to vary upward; (2) refusal to move the PSR paragraph to "Other Arrests"; (3) imposition of a $5,000 fine (including alleged coercion, failure to find ability to pay, and reliance on pretrial services report); and (4) acceptance of a check and imposition of the fine before allocution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court clearly erred in relying on belief of a deferred judgment and used that to justify an upward variance | Court relied on mistaken belief about a deferred judgment which affected sentence | Court did not err because it based the variance on the underlying sexual conduct, not on a deferred judgment | Affirmed — no clear error; district court relied on unobjected-to PSR conduct, which it permissibly considered |
| Whether the district court should have moved the sexual-conduct paragraph from "Adult Criminal Conviction(s)" to "Other Arrests" in the PSR | Leaving it under convictions misleads BOP and suggests court overruled scoring objection | District court may decline to edit PSR layout; BOP reviews multiple documents and administrative remedies exist | Affirmed — court need not act as PSR editor; Hopkins principle applies; speculative that BOP would misclassify |
| Whether the $5,000 fine was imposed under threat or as penalty for objections | Fine was imposed after threatening obstruction/denial of acceptance of responsibility | District court merely warned against frivolous objections; similar arguments rejected | Affirmed — no impermissible coercion; warning lawful (Trevino cited) |
| Whether district court failed to find defendant could pay fine | Court did not make required factual finding of ability to pay | Court expressly found ability to pay after colloquy; defense counsel conceded ability | Affirmed — sufficient factual finding and record (Kay addressed ability-to-pay requirement) |
| Whether district court improperly relied on confidential pretrial services report to assess ability to pay | Reliance on confidential pretrial report is improper | Probation officers may use pretrial reports to compile PSR; courts may consider them for sentencing and impeachment purposes | Affirmed — district court permissibly used report information for sentencing (statutory exceptions and Morrison/Wilson reasoning) |
| Whether accepting a check and imposing the fine before allocution violated right of allocution | Fine imposed and check accepted before allocution, requiring reversal | Defendant allocuted later and allocution could still have influenced sentence; court discussed fine after allocution and did not change it | Affirmed — not reversible; allocution occurred and could have affected sentence (Hentges/Gordon reasoning) |
Key Cases Cited
- United States v. Meadows, 866 F.3d 913 (8th Cir.) (clear-error standard for sentencing based on factual findings)
- United States v. Webster, 788 F.3d 891 (8th Cir.) (district reliance on unproven PSR allegations can be error when objected to)
- United States v. Beatty, 9 F.3d 686 (8th Cir.) (district courts are not PSR editors)
- United States v. Hopkins, 824 F.3d 726 (8th Cir.) (BOP may use PSR material; refusal to delete unproven PSR content affirmed)
- United States v. Morrison, 778 F.3d 396 (2d Cir.) (district courts expected to receive and use pretrial services information in sentencing)
- United States v. Hentges, 817 F.3d 1067 (8th Cir.) (announcing intended sentence before allocution is not reversible if allocution later occurs and could affect outcome)
- United States v. Kay, 717 F.3d 659 (8th Cir.) (court must find ability to pay before imposing fine)
- United States v. Wilson, 930 F.2d 616 (8th Cir.) (pretrial services reports may be used to impeach and thus bear on sentencing)
- United States v. Murchison, 865 F.3d 23 (1st Cir.) (BOP reviews full complement of sentencing documents for classification decisions)