United States v. Hugo Espinoza
697 F. App'x 308
| 5th Cir. | 2017Background
- Hugo Cesar Espinoza pleaded guilty to count one (conspiracy to possess with intent to distribute ≥50 g methamphetamine) under a written plea agreement; counts two and three were dismissed on the government’s motion.
- The district court adopted the PSR and sentenced Espinoza to a within-Guidelines term of 168 months’ imprisonment and four years’ supervised release.
- The PSR and district court attributed drug quantities from the dismissed counts (and factual admissions in the plea) as relevant conduct to calculate the base offense level.
- Espinoza appealed, arguing the district court erred by including drug quantities from dismissed counts in the Guidelines calculation and that trial counsel rendered ineffective assistance by failing to object.
- The government noted the plea agreement’s appellate waiver but did not seek to enforce it, so the panel reviewed the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court erred by using drug quantities from dismissed counts as relevant conduct for Guidelines calculation | Espinoza: court should not include dismissed-count drug quantities to determine base offense level; precedents should be reexamined | Government/District Court: dismissed-count quantities are relevant conduct and may be used; PSR and plea admissions support the finding | No plain or obvious error; district court properly relied on PSR and plea admissions to attribute relevant conduct |
| Standard of review for unpreserved objection to drug-quantity finding | Espinoza: challenges the calculation though failed to object below | Government: review for plain error because defendant forfeited objection | Plain-error review applies; Espinoza did not show clear/obvious error affecting substantial rights |
| Relevance of Cockerham/Hughey (restitution cases) to sentencing drug-quantity attribution | Espinoza: cited Cockerham/Alarcon to argue limits on using dismissed conduct for sentencing enhancements | Government: Cockerham concerns restitution law, not relevant to Guidelines drug-quantity attribution; Alarcon involved reversal of a conviction that was sole basis for enhancement, unlike this case | Cockerham inapposite; Alarcon distinguishable — here district court relied on plea admissions and PSR, not an overturned conviction |
| Ineffective assistance for counsel’s failure to object to drug-quantity findings | Espinoza: counsel was deficient for not objecting to inclusion of dismissed-count quantities | Government: counsel not deficient because objection would have been futile and PSR/admissions supported findings | Counsel not ineffective; failing to make a futile objection is not deficient performance |
Key Cases Cited
- United States v. Story, 439 F.3d 226 (5th Cir. 2006) (government’s failure to invoke an appeal waiver precludes enforcement)
- United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009) (plain-error review for unpreserved sentencing objections)
- Puckett v. United States, 556 U.S. 129 (2009) (standard for plain-error relief)
- United States v. Wall, 180 F.3d 641 (5th Cir. 1999) (relevant conduct may include drugs not specified in conviction)
- United States v. Byrd, 898 F.2d 450 (5th Cir. 1990) (relevant conduct includes quantities not specified in the count of conviction)
- United States v. Ponce, 917 F.2d 846 (5th Cir. 1990) (relevant conduct can include factual basis of dismissed counts)
- United States v. Cockerham, 919 F.2d 286 (5th Cir. 1990) (restitution limited to loss from conduct underlying conviction)
- United States v. Alarcon, 261 F.3d 416 (5th Cir. 2001) (plain error where overturned conviction was sole basis for sentencing enhancement)
- United States v. Vital, 68 F.3d 114 (5th Cir. 1995) (district court may adopt PSR findings absent objection or rebuttal)
- Roberts v. Thaler, 681 F.3d 597 (5th Cir. 2012) (counsel need not make futile objections)